172

State vs Amarjeet S/O. Shankar Sahni, R/O. on 30 July, 2012

25. PW19 SI Sandeep has deposed in his examination in chief that on 12.05.2011, he was
posted as SI in PS Vijay Vihar. And on that day at about 6am he received DD No.15B and
thereafter, he alongwith PSI Surender reached at SGM Hospital and doctor handed over to
him one MLC of Chhoti wife of Amarjeet, on which doctor had opined that, she was
brought dead, SHO alongwith his staff also reached at the spot. IO Inspector S.K. Jha had
also reached at the spot and he had inspected the dead body and MLC. State Vs
Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE27 OF PAGE 89 They
reached at the spot i.e. First floor of X1/3,4, Budh Vihar, PhaseI. Crime Team was called
and crime team inspected the spot and photographer took the photographs, blood was lying
on the entry gate of the first room from the staircase. One blood stained shirt was lying on
the cot. IO prepared a tehrir and handed over to Ct. Baljeet for getting FIR registered. IO
lifted the blood/blood stained floor and converted the same into pullanda and sealed with
the seal of SK and seized vide memo Ex.PW19/A. The blood stain was also put up into
pullanda and sealed with the seal of SK and seized vide memo Ex.PW19/B. IO recorded
statement of witnesses. Case properties were deposited in the malkhana. Accused Amarjeet
husband of the deceased Chhoti Devi was not found at his house. IO Inspector S.K. Jha had
received the secret information that accused Amarjeet can be found at Sector18, Rohini,
thereafter, he alongwith IO, HC Sunil Dutt and secret informer reached at Sector18, Rohini,
but accused State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S.
302 IPC PAGE28 OF PAGE 89 was not found there. When they were coming back and
when they reached at Sector16, near Transport Authority and there accused Amardeep was
apprehended at the instance of secret informer, he was interrogated and arrested vide memo
Ex.PW19/C and personal search vide memo Ex.PW19/D, accused's disclosure statement
was recorded vide Ex.PW19/E, thereafter, accused Amarjeet pointed out the place of
occurrence in Budh Vihar, Phase1, thereafter, accused Amarjeet had produced one blood
stained knife from the gallery of first floor lying behind the bricks. Sketch of the said knife
was prepared vide Ex.PW19/F and the said knife was put up into pullanda and sealed with
the seal of SK and seized vide memo Ex.PW19/G. After completion of the investigations
the accused was brought to the PS and case properties were deposited in the malkhana. He
had correctly identified the case properties i.e. blood stained shirt of a child as Ex.P1 and
one knife as Ex.P2. State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S.
302 IPC PAGE29 OF PAGE 89 In his cross examination he has deposed that DD No.6A
was marked to him and SHO had accompanied with him. He had inquired from the persons,
who have got admitted the deceased in the hospital and the deceased was brought in the
hospital in unconscious condition. SHO had reached at the hospital after five minutes of
his arrival. Crime Team had also reached at the hospital. He alongwith HC Sunil Dutt, HC
Sukhbir, Ct. Baljeet reached at the spot within 1520 minutes. He had made inquiries from
the other residents of the said house. During his investigations from the neighbourer, he
came to know that only accused alongwith his wife and child were residing there. He denied
the suggestion that the brother of accused Harish Sahni alongwith his wife Manju and son
Raj Kumar were residing in the said room or that he was suppressing this fact. IO Inspector
S.K. Jha had recorded the statement of neighbourer of deceased. He had only prepared the
State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE30 OF PAGE
89 rukka. IO had reached at the spot immediately after his reaching. Crime Team also
reached at the spot at the same time. IO had also inquired from the neighbourers. He had
briefed the IO Inspector S.K. Jha about his investigations conducted. He had searched the
room as well as the entire floor. He had not gone to the roof top of the said house. The
entire premises was thoroughly searched by IO with other staff as well as staff of the Crime
Team. Accused was not sharing his room with any other person. He denied the suggestion
that accused was sharing the room with his brother Harish Sahni, sister in law Manju and
their son Raj Kumar. The landlord of the said house was not present at that time. They
during inquiry, came to know that first time the dead body was seen by the neighbourer,
but he did not remember the name of the said neighbourer. He did not remember whether
he had met with the person by the name of Harish Sahni or Raj Kumar at the spot. Blood
was scattered only State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S.
302 IPC PAGE31 OF PAGE 89 near the entry gate of the room of the deceased. There was
a cot (Charpai) in the room. Blood mark was lying on the Charpai. There was no line of
blood, which formed by the person is dragged. He had sent the rukka at about 7.30am/8am.
The description of accused was told by the neighbourer. The said description of the accused
was not mentioned in the rukka, as the same was told by the neighbourer later on and
statement of that neighbourer was not recorded by him and he had informed the said fact
to the IO and also handed over to the IO the said paper. At that time witness was asked to
look into the judicial file and after going through the same he admitted that the said note
containing description of accused is not in the file. He does not remember whether the son
of the accused was there at the spot or not. He does not remember any investigations about
the son of the accused had left the spot at about 8.30am, however, IO, Crime Team and
other staff were remained State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S.
302 IPC PAGE32 OF PAGE 89 there. He again joined the investigation on the same at
about 11/12noon, when he reached at the spot again alongwith HC Sunil Dutt and one
constable, whose name he does not remember and from there they left for searching of the
accused alongwith HC Sunil Dutt and secret informer, who met him at the spot and then
they first reached at Sector18, Rohini and there accused was standing alone when they saw
him. They saw him from the distance of 1015 steps. Accused was apprehended in the noon
time, but he cannot tell the exact time. Thereafter, he handed over the accused with the
direction to take accused to the PS. He had not prepared any documents there, after
apprehension of the accused and before reaching the PS. After the apprehension of the
accused, all the documents were prepared at the PS by the IO, he had only signed on the
same. Accused was taken at the spot by the IO in noon time. The weapon of offence knife
was found in the gallery behind 30/40 State Vs Amarjeet//FIR NO.172/11 PSVIJAY
VIHAR// U/S. 302 IPC PAGE33 OF PAGE 89 bricks, which was lying there. He denied
the suggestion that nothing had happened in the date, time and manner deposed in my
examination in chief regarding the arrest of the accused. He further denied that nothing
incriminating have been recovered from the possession of the accused. He further denied
that no disclosure statement was given by the accused. He further denied that the knife has
been planted upon the accused or that he had not fairly investigated the case or that the true
material facts have been suppressed or that the rukka is ante timed and ante dated or that
he has deposed falsely.

29. PW23 Inspector S.K. Jha has deposed in his examination in chief that on 12.5.2011, he
was posted as Inspector (Investigation) at PS Vijay Vihar and on that day DD No.15B was
received in PS Vijay Vihar and initially it was attended by SI Sandeep and left for the spot
alongwith PSI Surender. Thereafter he alongwith his staff reached at SGM Hospital, where
he met with SI Sandeep, PS Surender, SHO and other staff and found one dead body of
Chhoti wife of Amarjeet was lying in the Emergency Ward of the hospital, he inspected the
dead body and found there was stab wound on the chest of the dead body and there was
blood spot on State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S.
302 IPC PAGE37 OF PAGE 89 the blouse and head of the deceased. Crime Team was
called and they inspected the dead body and took photographs. One Manju Devi was
present in the hospital, who told that she had brought deceased from X1/3,4, Budh Vihar,
Phase1, first floor where she was in injured condition. PSI Surender was left in the hospital
and thereafter, he alongwith staff and crime team reached at the spot. Crime Team inspected
the spot and took photographs. Blood was lying at the entry point of the room and one
blood stained shirt of a child was lying on the cot. No eyewitness was found there, then he
prepared rukka Ex.PW23/A and same was handed over to Ct. Baljeet for getting the FIR
registered and got registered the FIR and came back at the spot and handed over him the
copy of FIR and original rukka. He lifted the blood stained floor alongwith sample floor
were lifted and given serial no.1 & 2 and seized vide memo Ex.PW19/A, blood stained
shirt lifted from the spot and converted State Vs Amarjeet//FIR NO.172/11 PSVIJAY
VIHAR// U/S. 302 IPC PAGE38 OF PAGE 89 into pullanda and sealed with the seal of
SK and seized vide memo Ex.PW19/B. He also prepared the site plan Ex.PW23/B and
recorded statement of witnesses. Accused Amarjeet husband of deceased Chhoti was
missing from the house. He made inquiries and recorded the statement of public witnesses
and thereafter, we came back to the PS and case property was deposited in the malkhana In
the evening at about 6 pm, he received a secret information that accused Amarjeet can be
found at Transport Authority, Sector16, Rohini, which is just near Sector18, Rohini.
Thereafter, he alongwith HC Sunil Dutt, SI Sandeep and secret informer reached at
Transport Authority, Sector16 and accused Amarjeet was apprehended at the instance of
secret informer, accused was interrogated and arrested vide memo Ex.PW19/C, his
personal search was taken vide memo Ex.PW19/D and he made his State Vs Amarjeet//FIR
NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE39 OF PAGE 89 disclosure statement
vide Ex.PW19/E. Thereafter, accused pointed out the place of occurrence in Budh Vihar,
Phase1, first floor, Delhi and in pursuance of his disclosure statement he has produced one
blood stained knife from the gallary of first floor lying behind the brick and sketch of knife
was prepared Ex.PW19/F and knife was seized vide memo Ex.PW19/G and after
completing the investigation accused was brought to the PS, case property was deposited
in malkhana and he recorded the statement of witnesses. On 15.5.2011, Mohan Sahni and
Hari Sahni father and brother of deceased came in SGM Hospital Mortuary and they
identified the dead body vide statements Ex.PW7/A and Ex.PW18/A, he conducted the
inquest proceedings. The request for postmortem is Ex.PW23/C, brief facts Ex.PW23/D
and form 25.35 Ex.PW23/E. The postmortem examination on the dead body Chhoti was
got conducted and thereafter dead body was handed over to the father State Vs
Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE40 OF PAGE 89 of
deceased vide receipt Ex.PW7/B and after postmortem examination, doctor handed over
exhibits alongwith sample seal which were seized vide memo Ex.PW18/B. On 26.05.2011,
SI Manohar Lal took the rough notes and measurement for preparing the scaled site plan
and thereafter on the basis of same, he prepared the scaled site plan and handed over to IO.
On 22.6.2011 he had moved an application Ex.PW23/F for seeking the subsequent opinion
regarding the nature of injury and produced before the doctor who conducted the
postmortem examination pullanda containing the knife which was got recovered by
accused and thereafter doctor gave his opinion and pullanda was again deposited in the
malkhana. On 28.6.2011, exhibits were sent to FSL through Ct. Lal Singh and thereafter he
deposited the receipt to MHC(M) and he recorded statement of MHC(M). He collected one
electricity bill from Leelawati (Landlord of accused and deceased), same is Ex.PW23/G
and after State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE41
OF PAGE 89 completing the investigations, challan was prepared and filed in the court.
Later on, FSL Result was collected and filed in the court. The FSL Report alongwith report
of Biology Division is collectively exhibited as Ex.PW23/H. He has also identified the
accused in the court and also the case properties i.e. one blood stained shirt of a child as
Ex.P1, one knife which was got recovered by the accused as Ex.P2.

When he visited the SGM, he met Manju. He had not recorded statement of Manju in
hospital. He voluntarily deposed that statement of Manju was recorded later on at Budh
Vihar. He did not remember the exact time when he recorded the statement of Manju but it
was recorded in afternoon on 12.05.2011. Before recording the statement of Manju, he had
recorded statements of Hasina and Urmila residents of Budh Vihar. He did not remember
the exact time when he recorded their statements. He denied the suggestion that State Vs
Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE43 OF PAGE 89 he
had recorded the statement of Manju in hospital or that same was not converted into rukka
deliberately or that the FIR was deliberately registered on DD Entry in order to buy time
and cook up the story. He remained in SGM Hospital on the date of incident from 6.15am
to 7.15 am. He had called the crime team through duty officer. He alongwith crime team
reached at the spot, from hospital, at about 7.30am. He cannot tell the exact time when
crime team reached in the hospital. However, he deposed that crime team first reached at
the hospital and crime team remained at the place of occurrence for about one hour. He
cannot tell when crime team left at the spot. He also cannot tell the time when the crime
team incharge prepared the crime team report. He had not collected the crime report at the
spot. He cannot tell the date and time when the crime team report was collected by him.
Crime team was consisting of photographer and finger print expert. The Crime Team
inspected the spot in his State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S.
302 IPC PAGE44 OF PAGE 89 presence. In his presence, the finger print expert had taken
chance prints from table, door and other articles which he did not remember. He had
prepared rukka from the place of incident and prepared the rukka after the departure of
crime team from the place of occurrence. He denied the suggestion that he had deposed
falsely in this regard or that he had deposed falsely with regard to the inspection, chance
prints and timing of the inspection of crime team. He could not tell at what time FIR was
received by Magistrate. He had not collected the copy of FIR having the endorsement of
Ld. MM. He further denied the suggestion that FIR was ante timed and ante timed or that
proper and fair investigation in this regard was not conducted by him. He came to know
about the name of accused during inquiry after sending the rukka at about 9.45am. The
other tenants of house told the name of accused. Inquest proceedings were conducted on
15.5.2011 by him. He had also recorded the brief facts. He had not State Vs Amarjeet//FIR
NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE45 OF PAGE 89 mentioned the name
of accused accused and the gist of the incident in the brief facts. He voluntarily deposed
that it was not necessary. He further deposed that it is correct that postmortem doctor had
advised to inform SDM before postmortem. But he voluntarily deposed that he did not think
it fit to call SDM as it was a case of murder.
Sanjiv vs State

2.02. Mr.Mihir Joshi, learned Senior Advocate appearing with Mr.Hriday

Buch, learned advocate appearing on behalf of the petitioner has
vehemently submitted that as such the petitioner has not committed the
offence much less the offences punishable under sections 172 and 177 of
the Indian Penal Code, as alleged. It is submitted that even on bear
reading of the aforesaid complaint and considering the averments and
allegations made in the said complaint as they are, it cannot be said that
the petitioner has committed the offences punishable
under sections 172 and 177 of the Indian Penal Code, as alleged. It is
submitted that admittedly even as per the averments and allegations made
in the impugned complaint, summonses were issued upon the petitioner
under section 160 of the Code of Criminal Procedure and said
summonses were served upon the petitioner and therefore, ingredients
of section 172 of the Indian Penal Code are not satisfied at all. It is
submitted that section 172 of the Indian Penal Code would be
applicable only in a case where it is found that the concerned person has
absconded to avoid service of summonses or other proceedings. It is
submitted that in the present case, it is not the case on behalf of the
complainant - respondent No.2 that the petitioner has absconded to avoid
service of summonses or other proceedings. It is submitted that on the
contrary even as per the complainant summonses under section 160 of
the Code of Criminal Procedure were served upon the petitioner and the
same were accepted by the petitioner and he had sought adjournment.
Therefore, it is submitted that no case is made out against the petitioner
for the offence punishable under section 172 of the Indian Penal Code.

2.04. Mr.Mihir Joshi learned Senior Advocate appearing on behalf of the

petitioner has therefore submitted that as such the impugned complaint
does not disclose commission of any offence by the petitioner, more
particularly for the offences punishable under sections 172 and 177 of
the Indian Penal Code and no case is made out for the offences
punishable under sections 172 and 177 of the Indian Penal Code. It is,
therefore, requested to quash and set aside the impugned complaint as the
same is nothing but abuse of process of law and court and unnecessary
harassment to the petitioner.
By making above submissions, Mr.Mihir Joshi, learned advocate
appearing on behalf of the petitioner has requested to allow the present
petition.

3.00. Present petition is opposed by Mr.P.K. Jani, learned Public

Prosecutor appearing on behalf of the State as well as investigating officer
- respondent No.2. It is submitted that despite the service of summons
issued upon the petitioner under section 160 of the Code of Criminal
Procedure, the petitioner did not appear before the investigating officer
and did not cooperate the investigating officer with respect to the First
Information Report filed against him being CR No.I-149 of 2011 and
therefore, it can be said that the petitioner has committed offences
punishable under section 172 of Indian Penal Code.

5.01. Now, so far as the section 172 of Indian Penal Code is concerned,
it can be applicable only in a case where any person inclusive of an
accused has absconded in order to avoid any service of notice or other
proceedings from any public servant legally competent to issue such
summons. Therefore, only in a case where it is found that such person has
absconded to avoid service of summons or other proceedings, then and
then only it can be said that such person has committed offence
under section 172 of the Indian Penal Code. In the present case,
admittedly and even according to the complainant - respondent No.2,
summons issued upon the petitioners under section 160 of the Code of
Criminal Procedure were served upon the petitioner and the same were
accepted by the petitioner and it is not the case of the complainant -
respondent No.2 that the petitioner has avoided the service of notice and
has not accepted the summonses and/or that he was absconding to avoid
service of summons or other proceedings. The facts are otherwise. In fact,
the summons are served upon the petitioner and the summonses were
accepted by the petitioner. It might be that the petitioner had sought
adjournment for appearing before the concerned investigating officer
after having served with the summonses. However, by that itself it cannot
be said that the petitioner has committed offence under section 172 of
the Indian Penal Code. To abscond to avoid of service or to avoid
service of summons or other proceedings is different than that of asking
adjournment after having served with the summonses. Under the
circumstances, on bear reading of the allegations made in the complaint,
it cannot be said that even a prima facie case is made out against the
petitioner for the offence under section 172 of Indian Penal Code as the
ingredients for the offence under section 172 of
the Indian Penal Code are lacking.

Moti Singh Sikarwar vs State Of U.P. And Another on 29 November, 2016

Considered the rival submissions of the parties.

The only point for determination, involved in the present case is "whether the bar created
by section 195(1)(a) Cr.P.C., in respect of offence u/s 172 to 188 I.P.C., would apply to the
offence u/s 174-A I.P.C., which was added subsequently in I.P.C. by Amending Act of
2006?"

Before dealing with the issue involved in the present case, it appears expedient to have a
look on the relevant legal provisions as envisaged u/s 195(1)(a) Cr.P.C. and section 174-
A I.P.C.

It may be noted that Section 174-A I.P.C. was introduced in the Code w.e.f. from 23rd
June, 2006 and Section 195(1)(a) Cr.P.C., which provides that no court shall take
cognizance of offences punishable under Sections 172 to 188 (both inclusive) of the I.P.C.
or of the abatement or attempt to commit the said offence, except by complaint in writing
by the public servant or of some other public servant to whom he is administratively
subordinate, was a part of the Criminal Procedure Code since 1974 when the new Criminal
Procedure Code came into force.

There is no dispute that no corresponding amendment was brought

into section 195(1)(a) Cr.P.C. in the year 2006, when a new offence, by
adding section 174-A was introduced in I.P.C. Now the question is whether Section 174-
A would be deemed to be included between section 172 to section 188 I.P.C., as
mentioned in section 195(1)(a) or not ?

After giving my thoughtful consideration to the rival arguments advanced by learned

counsel for the parties and having perused the relevant legal provisions, I am of the
considered view that section 174-A I.P.C. cannot be deemed to be included in
between section 172 I.P.C. to section 188 I.P.C., as mentioned
in section 195(1)(a) Cr.P.C. and the bar created by section 195(1)(a) Cr.P.C. will not apply
to the provisions of Section 174-A I.P.C..

The reasons are as follows:

1. It is to be noted that all the offences under Section 172 to 188 I.P.C. (both inclusive) are
non-cognizable and bailable, whereas Section 174-A I.P.C. which provides for punishment
upto 7 years imprisonment and fine, in case the offender fails to appear at the specified
place and the specified time, as required by the proclamation published
under Section 82 Cr.P.C., is cognizable and non-bailable. The legislature was conscious of
this fact and that is why while introducing Section 174-A in the I.P.C. in the year 2006, it
made no corresponding amendment in Section 195 (1)(a) Cr.P.C. so as to
include Section 174-A I.P.C. in between all the non-cognizable offences and bailable
from Sections 172 to 188 I.P.C.

173
R. Kalyani vs Janak C. Mehta & Ors on 24 October, 2008

"5. In Krishnan and Anr. v. Krishnaveni and Anr. [(1997) 4 SCC 241] this
question came up for consideration. That was a case where the complaint
was registered under Sections 420, 406 IPC. After inquiry, the police
filed a report stating that the case was essentially of a civil nature and no
offence was made out. The complainant brought the matter to the
Superintendent of Police. As per the directions of the Superintendent of
Police, the case was investigated by the Crime Branch and a fresh report
was filed under Section 173 IPC. On receipt of the report, the Magistrate
took cognizance of the offences under Sections 420 and 406 IPC.
Thereupon, the appellant/accused filed an application for discharge and
the accused was discharged by the Magistrate. The complainant filed a
revision before the Sessions Court and the revision was dismissed. On
further revision by the complainant, the High Court set aside the order of
the Magistrate and directed the trial of the criminal case on merits. This
was challenged on the ground that the second revision was not
maintainable. A Bench consisting of three Judges of this Court held:

Kailash Verma vs Punjab State Civil Supplies ... on 18 January, 2005

. We heard the counsel for the appellant, as also the counsel for the respondents. The
counsel for the appellant contended that the respondent-corporation had already filed a
Revision against the order of discharge passed by the Chief Judicial Magistrate and in view
of Section 397(3) of the Criminal Procedure Code, the second Revision before the High
Court was not maintainable and that the High Court seriously erred in entertaining the same.
The counsel for the respondent-corporation, on the other hand, contended that the High
Court exercised the power under Section 482 Criminal Procedure Code and that the High
Court had inherent jurisdiction to set aside the order passed by the Sessions Judge in
Revision as there was serious miscarriage of justice. The counsel for the respondents
submitted that the power under Section 482 of the Criminal Procedure Code could be
exercised by the High Court even in cases where the Revision was not maintainable
under Section 397(3) of that Code.

5. In Krishnan and Anr. v. Krishnaveni and Anr. , this question came up for consideration.
That was a case where the complaint was registered under Sections 420, 406 IPC. After
inquiry, the police filed a report stating that the case was essentially of a civil nature and
no offence was made out. The complainant brought the matter to the Superintendent of
Police. As per the directions of the Superintendent of Police, the case was investigated by
the Crime Branch and a fresh report was filed under Section 173 IPC. On receipt of the
report, the Magistrate took cognizance of the offences under Sections 420 and 406 IPC.
Thereupon, the appellant/accused filed an application for discharge and the accused was
discharged by the Magistrate. The complainant filed a revision before the Sessions Court
and the revision was dismissed. On further revision by the complainant, the High Court set
aside the order of the Magistrate and directed the trial of the criminal case on merits. This
was challenged on the ground that the second revision was not maintainable. A Bench
consisting of three Judges of this Court held :

174
Smt. Deeksha Puri vs State Of Haryana on 16 October, 2012

A perusal of the above said provisions indicate that Section 174 of IPC was meant to punish a person
who failed to fulfill his obligation to attend in person or by an agent in the Court of justice and to
undergo simple imprisonment for a term which may extend to 6 months or with a fine which could
extend to one thousand rupees or with both if he omitted to attend at a particular place or time. The
offences have been classified for the purpose of punishment under Section 174 IPC. The offences
which fall in para 1 of Section 174 entail simple imprisonment for one month or fine of Rs.500/- or
both; offence is non-cognizable, bailable and triable by Magistrate but not compoundable. Similarly
the offences falling under para 2 pertaining to proclamation, entails simple imprisonment for 6
months or fine of Rs.1000/- or both. Offence is non-cognizable, bailable and triable by Magistrate
but not compoundable. For a person absconding, for whom a proclamation had CRM M-359 of 2012
[26] been published under Section 82 (1), (2) and (3) Cr.P.C., could be punished for simple
imprisonment for a period of six months or with a fine of Rs.1000/- under Section 174 IPC. The
offence under Section 174 IPC is non-cognizable as it also falls within the ambit
of Section 195 Cr.P.C. laying down that no Court shall take cognizance for any offence punishable
under Sections 172 to 178 of IPC (both inclusive), as per Section 195 (1) (a) (i) except on the
complaint in writing by a Court.

Vide the amendment by Act No.25 of 2005, after Section 174 IPC, another Section 174 A IPC and
another Section 229 A IPC was incorporated vide Sections 44 (b) and 44 (c) respectively w.e.f. June
23, 2006, simultaneously also adding Section 82 (4) and (5) Cr.P.C. vide Section 12 of amendment
Act No.25 of 2005. Section 12 of Act No.25 of 2005 dealing with amendment of Section 82 Cr.P.C.
has already been reproduced in first para of this judgment.

The provisions of Section 82 (4) and (5) Cr.P.C. if read in isolation and construed literally, tend to give
a meaning that it is only when a proclamation under Section 82 (1) Cr.P.C. in respect of a person
accused of offences specified in Section 82 (4) Cr.P.C. stands issued and that accused fails to appear
at a specified place and time required by proclamation, the Court may pronounce him a "proclaimed
offender" and make a declaration to that effect. Section 82 (5) Cr.P.C. which has been incorporated
shows that the declaration which is made by the Court under Section 82 (4) Cr.P.C. would be
governed by the provisions of sub-sections CRM M-359 of 2012 [27] (2) and (3) of Section 82 Cr.P.C.,
pertaining to declaration made by the Court and shall apply as it applies to a proclamation published
under Section 82 (1) Cr.P.C.

Sub-section (4) of Section 82 Cr.P.C., if read, independent of the other sub-

sections of Section 82 Cr.P.C. and provision of Section 174-A IPC and Section 174 IPC, is capable of
being misconstrued to mean that it is only that accused person, facing trial, only for offences
mentioned in Section 82 (4), who can be declared "proclaimed offender" after publication
under Section 82 (1) (2) and (3) Cr.P.C. giving immunity to the other absconders from being declared
"proclaimed offenders". In that imaginary situation, it appears to be a relaxation clause. But if sub-
sections (4) and (5) of Section 82 Cr.P.C. are read alongwith sub-sections (1) and (2)
of Section 82 Cr.P.C. and Scheme of other provisions of Cr.P.C. and Sections 174 and 174 A IPC,
following the Rule of "Contextual construction", and "Harmonious Construction", it would avoid the
risk of making interrelated provisions becoming otiose or devoid of meaning. The intention of
legislation to make stringent penal provisions of Section 174 A IPC for securing the presence of an
absconder by providing 7 years imprisonment for avoiding summons, warrants or proclamation,
under Section 82 (1) Cr.P.C. can not be ignored while construing Section 82 (4) Cr.P.C. One can not
negate the effect of Section 174-A IPC and render it redundant by misconstruing
the Section 82 (4) Cr.P.C. to mean that it is meant to provide relaxation to offenders of offences not
covered under Section 82 (4) Cr.P.C.

Section 174 IPC made, non-attendance, in obedience of an order of public servant or a Court, an
offence which entailed very meager punishment of simple imprisonment for one month or six
months in case the disobedience was pertaining to summons of public servant or of a Court of CRM
M-359 of 2012 [35] justice respectively. The offence was also non-cognizable but the intention of the
legislation to provide stringent punishment for disobedience to proclamation is writ large from the
provisions of Section 174 A IPC, which has been incorporated vide Section 44 of Act No.25 of 2005.
Even Section 195 Cr.P.C. prohibited the taking of cognizance of an offence under Section 174 IPC
without there being a complaint by the Magistrate but Section 174 A IPC lays down punishment for
failure to appear at a specified place and at the specified time as required by a proclamation
published under Section 82 (1) Cr.P.C., providing punishment with imprisonment for a term which
may extend to 3 years or with fine or with both but where the declaration has been made under
sub-Section 82 (4) of Cr.P.C., declaring him a proclaimed offender, he shall be punishable for
imprisonment for a term which may extend to 7 years and shall also be liable to fine. The offences
which are mentioned in sub-section 82 (4) Cr.P.C. have been considered to be serious offences
whereas the offences which fall under Section 82 (1) Cr.P.C. have been considered to be less serious
offences as is depicted from the punishment prescribed. Section 174 A IPC consists of two paras. The
first para deals with proclamation for all the offences whereas para 2 provides for imprisonment for
7 years for the offences which fall under Section 82 (4) Cr.P.C. Objective of Section 174 A IPC is to
enhance the punishment already prescribed under Section 174 IPC. Prior to the incorporation
of Section 174 A IPC, non-attendance in obedience of a summons, notice, warrant or proclamation
was punishable only to the extent of one month or CRM M-359 of 2012 [36] six months. In case a
warrant against an absconding accused is issued and he conceals himself to avoid execution of the
warrant, the Court concerned was entitled to publish a written proclamation requiring him to appear
at a specific place and a specific time within a period of 30 days of the date of publication. The mode
of publication is prescribed in Section 82 (2) Cr.P.C. After the proclamation, if an accused did not
appear, two arrangements were provided i.e. for non-appearance pursuant to summons issued by
any public servant, sentence of simple imprisonment of one month or fine of Rs.500/- but if the
summons, notice or order of proclamation was issued by a Court of justice, the punishment had
been provided for a simple imprisonment for six months or a fine of Rs.1000/-. Under Section 174 A
IPC, two types of punishments have been prescribed. As per para 1 of Section 174 A IPC, if a person
fails to appear at a specified place and specified time as required by proclamation published
under Section 82 (1) Cr.P.C., he would be punishable with imprisonment for a term of 3 years or with
a fine or with both but where a declaration has been made for specific offences reflected
in Section 82 (4) Cr.P.C. pronouncing him a proclaimed offender, an accused shall be punished with
an imprisonment for a term which may be extended to 7 years. The offence under Section 174 IPC
was bailable and non-cognizable but Section 174-A IPC has been incorporated to enhance the rigour
of punishment of non-appearance pursuant to publication. The first part of Section 174 A deals with
absconding persons for all the offences and provides punishment for non-

Emperor vs Himanchal Singh on 16 January, 1930

It is common ground that the citation was served upon Himanchal Singh personally and that he did
not attend, nor paid the arrears within the time specified in the citation. Himanchal Singh was put
upon his trial under Section 174, I.P.C. He admitted that the citation was served upon him and that
he did not attend or deposit the amount of the arrears. The Magistrate describes this as a plea of
guilty. It clearly was not a plea of guilty of an offence under Section 174, I.P.C. But this ceased to be
of importance again in view of the fact that the Magistrate acquitted him in obedience to the ruling
to which we have referred. It has only been necessary to mention these immaterial matters because
they did in fact form the subject of argument, and it is necessary to sweep them aside. Before giving
briefly our reasons for holding that the citation to appear was not a summons, notice or order which
the recipient was legally bound to obey by appearing within the meaning of Section 174, I.P.C. we
will narrate as briefly as possible the history of the previous decisions on the point.

16. Much argument has been directed to suggest that a citation is in fact equivalent to a summons
carrying with it the consequence enacted in Section 174, I.P.C. It may be that it is so in some cases. It
does not follow that it is so in all. But in fact even if it could be held to be merely a variant of the
word ''summons," and that the two words are interchangeable, even that will not help the appellant,
for it is manifest that the word "summons" is sometimes used in cases where the recipient is not
bound to obey the summons. It is in itself a striking fact that nobody has ever yet heard of a man
being prosecuted under Section 174, I.P.C., for failing to obey a summons to attend a Court as a
witness. The invariable procedure followed, if the attendance of the witness is essential, is to issue a
warrant for his arrest; and indeed in the Civil Procedure Code express provision for this is made
in Section 32, in which there is no reference to Section 174, I.P.C. But more than this, we find the
word "summons" actually used in the very Act which we are considering in Section 201 where it is
laid down in the proviso that no order shall be altered without previously summoning the party, in
whose favour that order was passed, to appear. Manifestly here no liability under Section 174, I.P.C.,
can arise. Again, where it is intended that failure to appear even in answer to a summons should
carry the consequences laid down in Section 174, I.P.C., we find it expressly stated, which declares
that "all persons so summoned shall be bound to attend." As to citations, to refer to another Act, we
find that where it is intended that failure to obey a citation should be penalised, that intention is
made the subject of express enactment, e.g., Act 21 of 1866, Sections 10 and 11, where it is declared
that the respondent, in other words, the defendant in the suit, shall be served with a citation to
appear, and that in default of his or her appearance, liability to punishment
under Section 174, I.P.C., follows. Lastly, we may note that to give the less strict meaning to the
term "citation" if indeed the more severe interpretation be permissible at all, is in accordance with a
reasonable interpretation, of the scheme of the Act. The Tahsildar has under Section 145 to certify a
statement of account showing the existence of the arrear, of its amount and of the person who is
the defaulter. It is declared that this statement of account shall be conclusive evidence of the facts
stated in it. It is manifest, however, that this cannot possibly be held to prevent the Tahsildar from
amending the certified statement of account if he desires to do so. If he has issued a writ. of demand
in accordance with that statement of account, and either in consequence of information received
from the alleged defaulter, or from any other source, he has reason to doubt the correctness of the
statement or the desirability of proceeding to extreme measures without further light on the matter,
it is reasonable to suppose that he should be empowered to give the alleged defaulter an
opportunity of appearing before him and explaining either that he is not the person liable, or that he
is not liable for the whole amount claimed, or of offering to make an arrangement which will not
necessitate proceeding to extreme measures. It is not necessary to elaborate this. We have already
noted above that no other proper motive can be suggested as underlying the use of the word
"citation."

I am informed of your order and received a copy of the summons through the peon.

20. This document contained a warning note:

A failure to attend will be punishable in the criminal Courts under Section 174, I.P.C.

21. Himanchal Singh did not pay the amount of arrears together with the costs of the process fee nor
did he attend the Court of the Tahsildar, on 26th July 1928, as he was directed to do. Proceedings
were initiated against him under Section 174, I.P.C., and he was eventually put upon his trial before
Khan Bahadur Maulvi Muhammad Mansub Hasan Khan, Special Magistrate of Second Class. The
statement of the accused was recorded, on 5th October 1928, under Section 364, Criminal P.C., and
the accused admitted that the summons was issued to him and that he neither deposited the
revenue nor attended the Court. The Magistrate acquitted him on 8th October 1928. The Magistrate
held that, though the accused pleaded guilty, no, offence was committed by him
under Section 174, I.P.C., for non-attendance in the Court of the Tahsildar and reliance was placed
upon a Division Benth ruling of this Court in re, Emperor v. Bhirgu Singh A.I.R. 1927 All. 122 in
support of this view.

49. I hold, therefore, that where a citation has been issued to a person who is in arrear of
Government revenue under Section 147, Land Revenue Act, the said citation is a summons within
the meaning of Section 174, I.P.C., that the accused was legally bound to appear in the Court of the
Tahsildar in obedience to it and that by his failure to attend, he was guilty under Section 174, I.P.C.

50. I would, therefore, allow the Government appeal and convict the accused.

51. The result is that the appeal by the Local Government fails and is hereby dismissed, and the
acquittal of Himanchal Singh accused of an offence under Section 174, I, P.C. is hereby confirmed.

175

Bachraj Bengani vs A.K. Roy on 6 April, 2009

he case of the complainant Assistant Director, Enforcement Directorate (the Respondent herein) was
that the petitioner wilfully CRL.M.C. 1979 of 2006 page 1 of 10 neglected and failed to appear on 5th
April 1990, 29th November 1990 and 20th May 1991despite the summons issued to him
under Section 40(4) of the Foreign Exchange Regulation Act, 1973 („FERA‟) for those dates and had
therefore committed an offence under Section 174 IPC.

3. The learned ACMM took cognizance of the offence under Section 174 IPC on the basis of the said
complaint on 21st August 1991. Summons was issued for the appearance of the Petitioner on 14th
February 1992. The petitioner sought exemption from appearance by filing an application on 29th
May 1992. Subsequently by an order dated 18th July 2002 he was declared a proclaimed offender
and was arrested on 15th March 2004. In the meanwhile FERA came to be repealed by the Foreign
Exchange Management Act, 1999 („FEMA‟) which came into force on 1 st June 2000. In terms
of Section 49 (3) no court could take cognisance of an offence under FERA after a period of two
years from the date of commencement of FEMA. Therefore, the sunset period during which
complaints for commission of an offence under FERA was from 1 st June 2000 till 31st May 2002.
Admittedly, during this period the complainant did not file any complaint against the petitioner for
the commission of any offence under the FERA.

4. On 28th February 2006 when the case was fixed for framing of notice under Section 251 CrPC
before the learned ACMM, the Petitioner raised CRL.M.C. 1979 of 2006 page 2 of 10 the question of
maintainability of the complaint. It was submitted that in terms of the judgment of the Supreme
Court in Enforcement Directorate v. M. Samba Siva Rao (2000) 5 SCC 431 the offence of non-
compliance of a summons issued under Section 40 FERA was punishable only under Section 56 FERA
and not Section 174 IPC. However, since in the interregnum the FERA stood repealed by FEMA and
since no complaint was filed within the sunset period for the offence under Section 56 FERA, no
cognizance was taken by the ACMM of that offence. Therefore, the complaint for the offence
under Section 174 IPC could not proceed. Consequently there was also no question of converting
the complaint filed for an offence under Section 174 IPC, punishable only with imprisonment of one
month or fine (and therefore to be proceeded with by a summary trial under Section 260 CrPC) into
a warrant case in terms of Section 259 CrPC.

6. By the impugned order dated 16th March 2006, the learned ACMM negatived the plea of the
Petitioner. It was held that the predecessor ACMM had already taken cognizance of the offence of
non-compliance of the summons issued under Section 40 FERA, which according to the law
prevalent at that time was punishable under Section 56 FERA. It was held that "it is yet to be decided
as to whether this Court should proceed under Section 174 IPC or under Section 56 FERA". It was
held that the mention of Section 174 IPC in the order dated 16th March 2006 of the learned ACMM
"is an irregularity and not an illegality per se." It was also held CRL.M.C. 1979 of 2006 page 4 of 10
that since the Petitioner had joined the proceedings only in 2002 he could not be heard to contend
that cognizance could not be taken under Section 56 FERA by virtue of Section 49(3) FEMA. The case
was accordingly listed for pre-charge evidence on 17th April 2006.

10. On the other hand, it is clear that till the raising of the objection to maintainability of the
complaint, the learned ACMM had proceeded with the complaint as one for the offence
under Section 174 IPC. In M. Samba Siva Rao the Supreme Court referred to its earlier judgment
in Central Bureau of Investigation v. State of Rajasthan (1996) 9 SC 735 and unambiguously held that
the offence of refusal to comply with a summons issued under Section 40 FERA can only be tried as
an offence punishable under Section 56 FERA and not under Section 174 IPC. In doing so, the
Supreme Court expressly overruled the judgment dated 9th July 1999of the learned Single Judge of
this Court in Crl. M.(M) Nos. 500 & 1299 of 1991 etc. where it was held that it would be possible to
prosecute a person CRL.M.C. 1979 of 2006 page 7 of 10 disobeying a summons issued
under Section 40 FERA for the offence under Section 174 IPC or any other relevant provision under
Chapter 10 IPC. It was held as under (SCC, p.438):

The Superintendent Of Police vs The Judicial Magistrate Court

The Cr.P.C. provisions that have been relied upon by the learned Judicial Magistrate
are Sections 345, 349 and 350, which are extracted here under:

"345. Procedure in certain cases of contempt.

(1) When any such offence as is described
in section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code (45
of 1860) is committed in the view or presence of any Civil, Criminal or Revenue Court, the court may
cause the offender to be detained in custody and may at any time before the rising of the court on
the same day, take cognizance of the offence and, after giving the offender a reasonable opportunity
of showing cause why he should not be punished under this section, sentence the offender to fine
not exceeding two hundred rupees, and, in default of payment of fine, to simple imprisonment for a
term which may extend to one month, unless such fine be sooner paid.

Union Of India vs Padam Narain Aggarwal Etc on 3 October, 2008

Criminal proceedings

7. In view of non-co-operation by the respondents, complaints were filed by the Custom Authorities
in a competent Court on September 16, 2006 and November 17, 2006 for commission of offences
punishable under Sections 174 and 175, Indian Penal Code, 1860. Application for anticipatory bail

8. The accused came to know about the filing of complaints. They, therefore, made applications for
anticipatory bail before the District and Sessions Court, Jaipur. The learned Judge, however,
dismissed the applications by an order dated November 22, 2006. The accused approached the High
Court of Rajasthan (Jaipur Bench) and as stated above, the applications were disposed of by the High
Court directing the Customs Authorities not to arrest the respondents of any non-bailable offence
without ten days prior notice to them.

176

Montreaux Resorts P.Tld. & Ors. vs Sonia Khosla & Ors. on 15 December, 2011

i. Criminal proceedings under 191/192//196/197/198/199/200/ 201/202/203/207/209/211 of

the Indian Penal Code, read with Sections 120- B and 34 of the Indian Penal Code, 1860, read
with Sections 176, 181 and 182 of the Indian Penal Code, 1860, read
with Sections 465, 366, 467, 468, 469, 409, 471, 474, 477 and 477-A of
the Indian Penal Code, 1860 and other provisions of the law, by initiating an inquiry within the
provisions of Section 340(1) of the Cr.P.C. read with Section 195(1)(b) of the Cr.P.C. (Only if such
enquiry be deemed necessary by this Hon'ble Court), and more particularly, may be pleased to
initiate as under:-

b) to appoint an Officer of this Hon'ble Court and to direct him to make a complaint thereof in
writing into the offences
under Sections 191/192/196/197/198/199 /200/201/202/203/207/209/209/211 of
the Indian Penal Code, read with Sections 120-B and 34 of the Indian Penal Code, 1860, read
with Sections 176,181 and 182 of the Indian Penal Code, 1860, read
with Sections 465, 466,467,468,469,409,471,474,477 and 477-A of the Indian Penal Code, 1860 and
to sign the said complaint; and

Mehboob Khan vs State Of Rajasthan Through Pp on 19 December, 2016

For Petitioner : Mr. Biri Singh Sinsinwar For Respondent : Mr. R.R. Baisla, P.P For Complainant: Mr.
Kartar Singh __________________________________________ HON'BLE MRS. JUSTICE SABINA
Judgment / Order 19/12/2016 Petitioner has filed this petition under Section 439 Code of Criminal
Procedure, 1973 seeking regular bail in F.I.R. No. 543/2016 registered at Police Station Kumher,
District Bharatpur, for offence under Sections 376-C, 176 & 115 Indian Penal Code, 1860
and Sections 66-E, 67-A & 67-B of The Information Technology Act, 2000 and Section 8 & 10 of The
Protection of Children from Sexual Offences Act 2012.

Learned counsel for the petitioner has submitted that the petitioner has been falsely involved in this
case being father of co-accused Jamil.

Learned State Counsel who is assisted by the counsel for the complainant, on the other hand, has
opposed the petition (2 of 2 ) and has submitted that prosecutrix who was aged about fifteen years
has been raped by co-accused Jamil and Sonu and they prepared a video in this regard and had
made it viral. Petitioner is the father of co-accused Jamil. Allegation against the petitioner is that, he
along with co-accused Basir Khan and Suleman had pushed the prosecutrix in the room and had
bolted the door from outside. Thereafter, the prosecutrix was raped by co-accused Jamil and Sonu.

Keeping in view the seriousness of the allegations levelled against the petitioner, no ground for grant
of bail to him is made out.

Dismissed.

(SABINA)J.

Mohita/60

177

Bikram Kumar Routray vs State Of Orissa on 29 July, 1994

Petitioner's application for dispensing with his personal attendance in terms of Section 205 of
the Code of Criminal Procedure, 1973 (in short, the 'Code') having been turned down by the learned
Judicial Magistrate, first class, Banpur, this application has been filed.

2. The prayer was turned down primarily on the ground that the offence allegedly committed by the
petitioner was of a very serious nature and involves moral turpitude. The petitioner's case is that
accusations were false and were aimed at lowering down his reputation in the society and in any
event the maximum punshment for an offence punishable
Under Section 177. Indian Penal Code, 1860 (in short, IPC) is simple imprisonment for a term which
any extend to six months, or with fine which may extend to one thousand rupees, or with both.

S.P.K.Dhamodhar vs Narayanasamy on 13 August, 2010

27. Further, by an affidavit, dated 10.7.2010, filed by the first respondent, it has been stated that the
petitioner has filed a criminal complaint, dated 15.4.2010, on the file of the Chief Judicial Magistrate,
Puducherry, under Section 200 of the Criminal Procedure Code, 1973, read with Section 125-A of
the Representation of the People Act, 1951, and under Section 177 of the Indian Penal Code, 1860,
on the alleged ground that the first respondent had failed to disclose the pendency of the criminal
complaint against him, in the affidavit filed along with his nomination paper, on 20.4.2009, as
required under Section 33-A of the Representation of the People Act, 1951. The criminal complaint
had been filed, on 15.4.2010, after more than 360 days after the filing of the affidavit, by the first
respondent, before the second respondent/Returning Officer, on 26.6.2009. The complaint filed by
the election petitioner had been dismissed by the Chief Judicial Magistrate, Puducherry, as not
maintainable, after a detailed hearing and by a well reasoned order. However, the election
petitioner had not brought to the notice of this Court the complaint, made by him, on 15.4.2010,
and the order of the Chief Judicial Magistrate, Puducherry, dated 5.5.2010, at the time of the
hearing of the election petition by this Court, either on 21.6.2010, or on 29.6.2010.

51. It has also been submitted that the phrase "upto two years" found in Section 500 of
the Indian Penal Code, 1860, does not fall under the ambit of the provisions of Section 33-A of the
Representation of the People Act, 1951.

52. The learned counsel had also submitted that Section 33-A of the Representation of the People
Act, 1951, cannot be a ground for setting aside the election of the first respondent for the reason
that the grounds for an election to be declared as void are specified in Sections 100 and 101 of the
Representation of the People Act, 1951, as per Section 81 of the said Act. Since, no ground had been
made out in the present case, in accordance with Section 100 of the Representation of the People
Act, 1951, the election petition filed by the petitioner is contrary to Section 81 of the said Act. In
fact, the election petition filed by the petitioner does not even mention Section 100 of the said Act.
Even assuming, without admitting, that there was a wilful suppression of a material fact, which was
required to be disclosed by the contesting candidate, under Section 33-A of the Representation of
the People Act, 1951, it cannot be a ground under Section 100 of the Representation of the People
Act, 1951. In fact, Section 125-A of the Representation of the People Act, 1951, provides the penalty
for the failure of a candidate to furnish information relating to sub Section 1 of Section 33-A of the
Act, as imprisonment for a term, which may extend to six months, or with fine, or with both. Based
on the said Section, the petitioner in the election petition had filed the criminal complaint, dated
15.4.2010, on the file of the Chief Judicial Magistrate, Puducherry, under Section 200 of the Criminal
Procedure Code, 1973, read with Section 125-A of the Representation of the People Act, 1951, and
under Section 177 of the Indian Penal Code, 1860. The criminal complaint, which had been filed,
belatedly, has been dismissed as not maintainable, on 5.5.2010. The said fact had not been placed
before this Court, by the petitioner, when the election petition came up for hearing, on 21.6.2010
and on 29.6.2010.

67. It has also been stated that the election petition has not been filed, under Section 100 of the
Representation of the People Act, 1951. Even if it is found that the first respondent had not
disclosed certain facts relating to the complaint, allegedly made against the first respondent,
under Section 499 of the the Indian Penal Code, 1860, it cannot be brought, under Section 33-
A(1)(i) of the Representation of the People Act, 1951, since, the punishment provided
under Section 500 of the the Indian Penal Code, 1860, for defamation, would not amount to
punishment, which would attract imprisonment of two years or more. Non disclosure of such
information may be a cause of action for initiating proceedings against the concerned candidate,
only under Section 125-A of the Representation of the People Act, 1951. Realising the said position,
the petitioner, in the election petition, seems to have filed the criminal complaint, dated 15.4.2010,
on the file of the Chief Judicial Magistrate, Puducherry, under Section 200 of the Criminal
Procedure Code, 1973, read with Section 125-A of the Representation of the People Act, 1951, and
under Section 177 of the Indian Penal Code, 1860.

Vinodbhai Ramdayal Verma vs State Of Gujarat on 26 April, 2017

It is in connection with the First Information Report bearing Crime Register No.I-50 of 2016
registered with Dungri Police Station, Valsad on 31st August, 2016 against the present applicant-
accused for the offences under Sections 279 and 304(A) of
the Indian Penal Code, 1860, Sections 177 and 184 of the Motor Vehicles Act and Sections 66(1)(b),
65(A)(e), 116(B), 98 and 99 of the Bombay Prohibition Act, that this application under Section 438 of
the Code of Criminal Procedure, 1973 is presented by the applicant.\
178

Kiran Bedi & Ors vs Committee Of Inquiry & Anr on 4 January, 1989

E.S. Venkataramiah, J.

1. It is unfortunate that this case has arisen between lawyers and police who are both guardians of
law and who constitute two important segments of society on whom the stability of the country
depends. It is hoped that cordiality between the two sections will be restored soon.

2. In order to avoid any further delay in the proceedings before the Committee consisting of
Goswamy and Wadhwa, JJ., constituted by Order dated 23rd February, 1988 to enquire into certain
incidents which took place on the 15th January, 1988, 21st January, 1988 and I7th February, 1988,
we pass the following order now but we shall give detailed reasons in support of this order in due
course.

3. The order is as under:

1. This order is passed on the basis of the material available on record, the various steps already
taken before the Committee and other peculiar features of the case.

2. The Delhi Administration has to examine first all its witnesses as required by Rule 5(5)(a) of the
Commissions of Inquiry (Central) Rules, 1972 (hereinafter referred to as 'the Rules') framed under
the Commissions of Inquiry Act, 1952 (hereinafter referred to as 'the Act'). Even those witnesses
who may have filed affidavits already may first be examined-in-chief before they are cross-
examined, since it is stated that when the affidavits were filed the deponents did not know what the
other parties who have also filed affidavits had stated in their affidavits. The question whether a
party has the right of cross-examination or not shall be decided by the Committee in accordance
with Section 8-C of the Act. In the facts and circumstances of the case to which reference will be
made hereafter this direction issued to the Delhi Administration to examine its witnesses first as
provided by Rule 5(5)(a) of the Rules referred to above does not apply to those witnesses falling
under Section 8-B of the Act, who have to be examined at the end of the inquiry as opined by the
Committee itself.

3. We have gone through the several affidavits and other material placed before the Committee and
also the Interim Report dated 9.4.88 passed by the Committee. In para 13 of the Interim Report the
Committee has observed thus:During the course of the inquiry, we have to examine the conduct of
various police officers and others and particularly, as the record shows, of the D.C.P. (North), Addl.
D.C.P. (North), S.H.O., P.S. Samepur (Badli) and S.I. Incharge Police Post, Tis Hazari and S.I., Samepur
(Badli).

4. In para 14 of the Interim report it is observed:

Lawyers have seriously urged that this Committee should send a report recommending suspension
of the D.C.P. (North) Ms. Kiran Bedi

5. Ultimately the Committee recommended the transfer of the petitioners in these cases, namely,
Ms. Kiran Bedi, D.C.P. (North) and Jinder Singh S.I. Incharge, Police Post, Tis Hazari.

Section 8-B of the Act reads:

8-B. If, at any stage of the inquiry, the Commission-

(a) considers it necessary to inquire into the conduct of any person; or

(b) is of opinion that the reputation of any person is likely to be prejudicially affected by the inquiry,

the Commission shall give to that person a reasonable opportunity of being heard in the inquiry and
to produce evidence in his defence:Provided that nothing in this section shall apply where the credit
of a witness is being impeached.

6. In its Interim Report the Committee has unequivocally observed that it had to examine the
conduct of various police officers, and in particular among others Ms. Kiran Bedi, D.C.P. (North) and
Jinder Singh, S.I., Incharge Police Post, Tis Hazari.

7. Having given our anxious consideration to all the aspects of the case we hold that the petitioners
Ms. Kiran Bedi and Jinder Singh are persons who fall under Section 8-B of the Act and have to be
dealt with accordingly.

8. According to the Committee's own opinion formed in the light of the facts and circumstances of
the case, all those persons to whom notices under Section 8-B of the Act are issued have to be
examined at the end of the inquiry. This is obvious from the order of the Committee passed on
29.6.88 after it was asked by this Court by its Order dated June 2, 1988 to reconsider the whole
question relating to the order in which the witnesses had to be examined in the case. In its order
dated 29.6.88 the Committee has observed thus:

Without going into the controversy if Rule 5(5) is an independent Rule or is governed by Section 8-B
and 8-C of the Act, we would direct that in the circumstances of the case three persons namely, the
Additional Commissioner of Police (Special Branch), D.C.P. (Traffic) and Mr. Gopal Das Kalra, SI to
whom notices under Section 8-B of the Act have been issued be examined at the end of the inquiry.

9. If three persons referred to above to whom notices under Section 8-B have been issued are to be
examined even according to the Committee at the end of the inquiry there is no justifiable reason to
deny the same treatment to the petitioners Ms. Kiran Bedi and Jinder Singh who are in the same
position as those three persons. The action of the Committee in asking them to be cross-examined at
the beginning of the inquiry appears to us to be discriminatory. Mere non-issue of notices to them
under Section 8-B ought not to make any difference if they otherwise satisfy the conditions
mentioned in Section 8-B. The issue of such a notice is not contemplated under Section 8-B of the
Act. It is enough if at any stage the Commission considers it necessary to inquire into the conduct of
any person. Such person would thereafter be governed by Section 8-B of the Act. The Committee
should have considered whether the petitioners were entitled to be treated as persons governed by
Section 8-B of the Act before asking them to get into the witness box for being cross-examined. If
the Committee had found that the petitioners were covered under Section 8-B, then perhaps they
would not have been asked to get into the witness box for being cross-examined till the end of the
inquiry. The Committee would have then asked them to give evidence along with others who were
similarly placed at the end of the inquiry.

10. On behalf of both the petitioners it is submitted that they did not either wish to delay the
proceedings or to show disrespect to the Committee but only wanted to protect their own interest
by making the submission which they made before the Committee as per legal advice given to them.

11. This is not a case where the circumstances in which the several incidents that had taken place
were not known to anybody else. The affidavits and other material before the Committee show that
there were a large number of persons who were eye-witnesses to the incidents and who could give
evidence before the Committee.
12. Taking into consideration all the aspects of the ease we feel that the Committee should not have
in the circumstances of the case directed the filing of a complaint against either of the petitioners for
an offence punishable under Section 178 I.P.C.

In view of the foregoing we feel that the orders of the Committee directing the filing of the
complaints and the criminal proceedings initiated against the petitioners before the Metropolitan
Magistrate pursuant to the complaints filed on behalf of the Committee should be quashed and we
accordingly quash the said orders of the Committee and also the criminal proceedings.

13. A judgment containing the reasons for this order will follow.

14. Before concluding this order we record the statement made by Shri Kuldip Singh, learned
Additional Solicitor General appearing for the Delhi Administration that the Delhi Administration and
its police officers will fully cooperate with the Committee so that the Committee may complete its
work as early as possible. We also record the statement made by Shri G. Ramaswamy, learned
Additional Solicitor General that he and his clients, the petitioners in this case hold the Committee in
great respect and that they never intended to show any kind of discourtesyto the Committee. He
also expresses apology for using one or two strong words against the Committee in the course of the
arguments in this Court.

179
Nandini Satpathy vs Dani (P.L.) And Anr on 7 April, 1978

Where do we demarcate the boundaries of benefit of doubt in the setting of section 161(2) Cr.
P. Code and Section 179 I.P.C. ?

Section 179 I.P.C.

This formulation does focus our attention on the plural range of jural concerns when a court is
confronted with an issue of testimonial compulsion followed by a prosecution for recusancy.
Preliminarily, let us see the requirements of section 179 I.P.C. since the appeals directly turn on
them. The rule of law becomes a rope of sand if the lawful authority of public servants can be defied
or disdained by those bound to obey. The might of the law, in the last resort, guarantees the right of
the citizen, and no one, be he minister or higher, has the discretion to disobey without running a
punitive risk. Chapter X of the Indian Penal Code is designed to penalise disobedience of public
servants exercising lawful authority. Section 179 is one of the pro- visions to enforce compliance
when a public servant legally demands truthful answers but is met, with blank refusal or plain
mendacity. The section reads :

" 179 whoever, being legally bound to state the truth on any subject to any public servant refuses to
answer any question demanded of him touching that subject by such public servant in the exercise
of the legal powers of such public servant, shall be punished with simple imprisonment for a term
which may extend to six months, or with fine which may extend to one thousand rupees, or with
both."

A break-down of the provision yields the following pieces : (a) the demanding authority must be a
public servant; a police officer-is obviously one, (b) The demand must be to state the truth on a
subject in the exercise of legal powers; and, indubitably, an investigating officer enjoys 'such powers
under the Cr. P. Code, and here, the requisition was precisely to tell the truth on matters supposedly
pertinent to the offences under investigation. Section 161 of the Cr. P.C. obligates 'any person
supposed to be acquainted with the facts and circumstances of the case to answer truthfully 'all
questions relating to such case .... other than questions the answers to which would have a tendency
to expose him to a criminal charge'. In the present case, admittedly, oral answers to written
interrogatories were sought, although not honest 'speech but 'constitutional' silence greeted the
public servant. And this refuge by the accused under Art. 20(3) drove the disenchanted officer to
seek the sanction of section 179 I.P.C. If the literal force of the text governs the complex of facts. the
court must convict, lest the- long arm of the investigatory law should hang limp when challenged by
the negative attitude of inscrutability, worn by the 'interrogatee'-unless within the text and texture
of the section built-in defences exist. They do, is the appellant's plea; and this stance is the subject
of the debate before us.

What are the defences open under Section 179 I.P.C. read with section 161 (1) Cr. P. C. ? Two
exculpatory channels are pointed out by Sri Rath, supplemented by a third paramount right founded
on constitutional immunity against testimonial self-incrimination. To itemise them for ready
reference, the arguments are that (a), 'any person in section 161(1) excludes an accused person (b)
that questions which form links in the chain of the prosecution case-these include all except
irrelevant ones-are prone to expose the accused to a criminal charge or charges since several other
cases are in the offing or have been charge-sheeted against the appellant and (c) the expansive
operation of the benignant shield against self-accusation inhibits elicitation of any answers which
the accused apprehends may throw inculpatory glow. This wide vindication, if valid, will be the
biggest interpretative bonus the court can award to criminals as it foredooms to failure of criminal
justice and police truth tracking, says the learned Advocate General. True, courts self-criminate
themselves if they keep the gates ajar for culprits to flee justice under the guise of interpretative
enlargement of golden rules of criminal jurisprudence.

Why do we ? To serve the ends of justice. When a woman is commanded into a police station,
violating the commandment of Section 160 of the Code, when a heavy load of questions is handed
in, some permissible, some not, where the area of constitutional protection against self-crimination
is (until this decision) blurred ill some aspects, when, in this court, counsel for the accused
unreservedly undertakes to answer in the light of the law we here lay down, when the object of the
prosecution is to compel contrite compliance with Section 161 Cr.P.C. abandoning all contumacy and
this is achieved by the undertaking, when the pragmatic issues involved are so complex that
effective barricades against police pressure to secure self-incrimination need more steps as
indicated in our judgement, we hold that persistence in the prosecution is seeming homage to the
rule of law and quashing the prosecution secures the ends of justice-the right thing to do is to quash
the prosecution as it stands at present. We regret that this dimension of the problem has escaped
the Executive's attention. for reasons best left unexplored. The conspectus of circumstances
persuades us to exercise our power under Art. 266 read with Art. 136 and section 401 of Cr.P.C. to
make the following direction. We are satisfied that many of the questions put by the police are not
self- incriminatory, remote apprehensions being wholly irrelevant. To answer is citizen's duty; failure
is asking for conviction. The appellant shall undertake to answer all questions put to her which do
not materially incriminate her in the pending or imminent investigations or prosecutions. If she
claims immunity regarding any questions she will, without disclosing details, briefly state in which
case or offence in the offing makes her reasonably apprehend self- incrimination by her refused
answers. If, after the whole examination is over, the officer concerned reasonably re- gards any
refusal to answer to be a wilful violation under pretense of immunity from self-incrimination, be will
be free to prosecute the alleged offender after studying the refusal to answer in the light of the
principles we have set out. Section 179 I.P.C. should not be unsheathed too promiscuously and
teasingly to tense lay people into vague consternation and covert compulsion although the proper,
office of Section 179 I.P.C. is perfectly within the constitutional limits of Art. 20(3) The appellant,
through her counsel, undertakes to abide by the above directions to answer all police interrogations
relevant but not self-incriminatory (as explained earlier). The police Officer shall not summon her to
the police station but examine her in terms of the proviso to section 160(1) of the Cr.P.Code. The
appellant shall, Within ten days from today, file a written undertaking on the lines directed above,
although, regardless thereof her counsel's undertaking will bind her. Indeed, we direct her to answer
in accordance with the law we have just clarified. The prosecution proceedings in complaint case No.
2(c) 388 of 1977 on the file of the Sub Divisional Magistrate Sadar, Cuttack, are hereby quashed and
the appeals allowed.

180

Singh vs . State Of Bihar, 2004, (Iv) Ad Crl. ... on 6 February, 2015

3. Since it is a Session's triable case, it was committed to this court. On 03.11.2011, charge under
376/506 IPC was framed against FIR No. : 180/10 U/s. : 376/506 IPC PS : Lodhi Colony, New Delhi.
Page No. 2 /27 the accused. He pleaded not guilty and claim trial.

4. To prove its case, prosecution examined as many as nineteen witnesses.

PW1 Shri Dharampal Meena is the brother of the prosecutrix. He deposed that he had been working
in a private construction company as a Supervisor since 2009 and living at Kotla Mubarakpur at B-
948, Arjun Nagar, New Delhi on rent. In January 2010, PW 11 started living with him in Delhi. She
enrolled herself in P.T Sachdeva College for coaching of teacher. On 12102010 when he (PW1) was in
his village, PW 11 informed him on telephone that she was disturbed. She was crying. He came to
Delhi along with his mother and sister Munia and reached at C2/8, Lodhi Colony where PW 11
informed that her life has been spoiled by the accused under the pretext of marriage and getting her
a job of teacher and that accused had sexual relations with her; also beat her and threw her out
from the house. He stated that she with her mother then went to the police station Lodhi Colony
and made complaint and she was medically examined.

FIR No. : 180/10 U/s. : 376/506 IPC PS : Lodhi Colony, New Delhi. Page No. 4 /27 PW5 HC Jaswant
recorded the FIR Ex.PW180/10 under section 376 IPC at P.S Lodhi Colony Ex.PW5/A.

PW6 Ct. Krishan Mohan joined the investigation. He went to AIIMS for medical examination of
accused. The doctor had given him the sealed exhibits along with the sample seal which he handed
over to the Investigating Officer, seized vide memo Ex.PW6/B.

PW 10 Sh. Rajeev Kanwat was inquired by the police officials about the whereabouts of accused
Nemi Chand Meena.

PW11 is the prosecutrix. She testified that in January 2010, she met the accused in a function of
Meena Jayanti in her village Bandsur. After about 23 days of the function, accused telephoned her
informing that vacancies in MCD for the post of teacher have been published. So she came to Delhi
in January 2010. On the same day, accused came at her brother's house and took her to his brother's
house at C2/8, Lodhi Colony, where he filled up a form and told her that he was a big officer in Delhi
and would get her job. Thereafter, he closed the doors & window and forcibly had sexual intercourse
with her against her wishes. Accused told her that he would arrange job and she should not disclose
the incident to anyone and he would marry her. FIR No. : 180/10 U/s. : 376/506 IPC PS : Lodhi
Colony, New Delhi. Page No. 6 /27 Accused also threatened her that if she disclosed the incident to
anyone, he would teach a lesson which she would remember in her life. She returned to her
brother's house but did not disclose the incident to anyone. She got her enrolled in P. T. Sachdeva
college where accused started meeting her in the evening. He used to snatch her note books asking
her to come at C2/8, Lodhi Road as he has knowledge of the subject and in this manner, he took her
23 times after her coaching class and during those day at C2/8 Lodh Road, which used to remain
vacant, raped her. In June 2010, after the coaching class was over, she left for her village but her
class notes & books were kept by the accused in his room at Lodhi Road. On 11.10.2010, she came to
Delhi and went to the house of the accused to take back her notes where accused met her. He asked
her to stay in the house and went to his office. He locked the house from outside and accused
returned in the evening. He then opened the house and came inside. She stated that accused kept
her waiting and committed rape upon her during night. She also stated that even on 12.10.2010, he
left the house by locking the house. She found a mobile from there FIR No. : 180/10 U/s. :
376/506 IPC PS : Lodhi Colony, New Delhi. Page No. 7 /27 and telephoned to her family members at
her village. She stated that accused beat her when she asked him to marry her. He told her that if he
would marry every girl with whom he has relation, his house would be filled up with girls. She
deposed that on 13.10.2010, her mother, brother Dharam Pal and sister Munniya came at the house
of accused. She narrated the entire facts to her mother, they all went to police station Lodhi Colony
but her report was not registered. She had beating marks on her person but her medical was not got
done. She proved her statement under section 164 CrPC Ex. PW 11/B. She also deposed that since
the relatives of the accused were pressurizing her to marry with the accused and she was feeling
insulted, she married to the accused at Arya Samaj Mandir. Thereafter, accused brought her at C2/8,
Lodhi Colony, and kept her for three months, however the brother of accused started pressurizing
her to vacate the house as the accused was not residing there.

13. She has stated that on 11.10.2010, she came to Delhi and went to the house of accused to take
back her notes and books, where accused asked her to stay in the house. He went to his office. He
locked the house from outside. He returned in the evening and opened the house. She stated that
she wanted to go to her brother's house but accused confined her there and committed rape with
her during the night. Even on 12.10.2010, he left for his office by locking her inside. He beat her. On
search, she found a mobile phone in the room of the accused and telephoned at her village. In the
evening, accused returned at the house and again committed rape upon her. When she insisted, he
should marry her, he beat her and kicked her out of the house saying that if he marries every girl
with whom she has relations, his house would be full of girls. She FIR No. : 180/10 U/s. :
376/506 IPC PS : Lodhi Colony, New Delhi. Page No. 17 /27 stated that on 13.10.2010, her brother,
mother and sister came at the house of accused, whom she told the entire facts. They went to the
police station but FIR was not registered. Again on 15.10.2010, they went to the police station and
her report was taken. She was taken to AIIMS for her medical examination. Perusal of the complaint
Ex. PW 11/A and the statement recorded under section 164 CrPC Ex. PW 11/B, show that the
complaint was lodged on 15.10.2010 only. The statement Ex. PW 11/B does not find mention that
they had gone to the police station on 13.10.2010 but the police did not take their complaint as
stated by PW 11 in her testimony. PW 1 has stated that on 12.10.2010, when he was in village, his
sister informed him on telephone that she was disturbed. She was crying so he with his mother and
sister came to Delhi, reached at C2/8 Lodhi Colony, where, prosecutrix was present and told her that
she had come there to take books and notes. He stated that her sister was outside the house. She
was crying. She told that she has been spoiled by Nemi Chand Meena on the assurance of marrying
her and getting her a job of teacher. He made sexual relations with her, beat her and kicked her out.
They went to the PS and later police got his sister medically examined. He has stated that he
received the telephone call from his sister on 12.10.2010 at about 5.00 pm. They reached at about
10.00 pm on the same day. PW 2 also stated on the lines of PW 1 but stated that they came to Delhi
on 13.10.2010, where she found her daughter crying outside the house on FIR No. : 180/10 U/s. :
376/506 IPC PS : Lodhi Colony, New Delhi. Page No. 18 /27 pavement

181

Babita vs State Of Punjab And Others on 30 November, 2017

On proceeding of application under Section 340 of the Code, notice was given to the petitioner and
she submitted her reply and the enquiry was conducted by Judicial Magistrate Ist Class, Malerkotla
and learned Magistrate returned the finding that on the basis of statement of officials from Airport
Authority and documentary evidence, it was established that false affidavit was filed by present
petitioner, Babita and ordered for filing of complaint under Section 177 and 181 IPC before Illaqa
Magistrate/Duty Magistrate as per provisions of Section 195 of the Code. Thereafter, proceedings
were transferred to the Court of Sub Divisional Judicial Magistrate, Malerkotla and charge was
framed on 30.3.2012 (Annexure P/6).

6. Contention was also raised by learned senior counsel representing the petitioner that order for
filing a false affidavit was passed on 3.7.2010. For commission of offence punishable
under Section 177 IPC, the sentence provided is upto six months and as per provisions
of Section 181 IPC, the sentence provided is three years. To sum-up, learned senior counsel
representing the petitioner submitted that the entire proceedings are liable to be quashed firstly,
because the complaint has not been filed by competent person as required under Section 195 of the
3 of 7 ..

".... respondent has committed an offence punishable under Section 177/181 IPC and complaint
accordingly be filed before the Illaqa Magistrate/Duty Magistrate as per provision
of Section 195 Cr.P.C. ..."

10. However, no complaint was filed in the Court within the prescribed period and on 22.1.2016, Sub
Divisional Judicial Magistrate, Malerkotla passed the order to file a complaint in compliance of order
dated 3.7.2010. At that time, it was observed that the complaint has not been prepared
inadvertently and no proceedings were taken up by Illaqa Magistrate/Duty Magistrate. However, the
relevant portion of order dated 4 of 7 ..

13. The above provisions clearly reveal that for the offence punishable under Section 177 IPC, a
complaint was to be filed within one year as the sentence provided is upto six months and for the
offence punishable under Section 181 IPC, the limitation period was three years, but cognizance had
not been taken till 2016 and the Court applied its judicious mind on 18.7.2016 vide order Annexure
P/2 when the charge was ordered to be framed.

14. The issue regarding taking of judicial cognizance by a Court was before Hon`ble Supreme Court in
Narayandas Bhagwandas Madhavdas Vs. State of West Bengal, AIR 1959 SC 1118, and it was
observed by the Apex Court that the Court is normally said to have taken cognizance of the offence,
when the Magistrate applies his mind for proceeding under Section 200 of the Code and the
subsequent Sections of Chapter XVI of the Code or under Section 204 of Chapter XVII of the Code.
That way, the cognizance in this case was taken on 18.7.2016 which was barred as per provisions
of Section 468 of the Code, but the Court below has not considered these aspects while passing the
impugned orders dated 2.6.2016 (Annexure P/1) and 18.7.2016 6 of 7 ..
182
Shyni Varghese And Ors. vs State (Govt. Of Nct Of Delhi) And ... on 15 February, 2008

The petitioners seek issuance of an appropriate writ/order/direction in the

nature of prohibition quashing the orders dated 8th June, 2006 and 4th
November, 2006 passed by the learned ACMM, New Delhi in case FIR
No. 305/2006, Police Station Sarita Vihar, New Delhi.

2. The facts leading to the filing of the present writ petition are as follows:
On 01.02.2006, FIR No. 104/2006 was registered
under Sections 19, 21, 25, 27 and 29 NDPS Act against Rahul Mahajan
and others by Police Station Tughlaq Road, New Delhi. On 08.06.2006,
an application was filed by the SHO, Inspector Madanjit Singh, Police
Station Tughlaq Road in the Court of the learned ACMM for the
registration of a case under Section 182 IPC against the doctors and
management of Apollo Hospital, wherein it was stated that since the
offence under Section 182 IPC was a non-cognizable offence and the
police cannot enter into investigation of such an offence suo moto,
permission for investigation of the case under Section 182 IPC may be
given.

(D. Kamini Lau) ACMM: New Delhi 8.6.06

4. Pursuant to the above order, a First Information Report bearing No.

305/2006 under Section 182 IPC was registered by the police of Police
Station Sarita Vihar and investigation commenced against the doctors and
management of the Apollo Hospital. On 30th October, 2006, a charge-
sheet in FIR No. 305/2006 under Sections 182/201/109/114/120B IPC,
Police Station Sarita Vihar was filed in the Court of the learned ACMM,
New Delhi. The said charge-sheet was accompanied by a copy of the FIR
Along with the complaint submitted by the complainant on 8th June, 2006
and was also accompanied by a formal complaint dated 30th October,
2006 under Section 195 Cr.P.C. by the same complainant, i.e., Inspector
Madanjit Singh of Police Station Tughlaq Road.

30. eferring next to the scheme of Sections 154, 155 and 156 as
contained in Chapter-XII of the Cr.P.C., Ms. Mukta Gupta contended that
while the provisions of Section 156(3) provide for investigation into
cognizable offences upon orders of a Magistrate empowered
under Section 190 to order such investigation, in clear contrast the
provisions of 155(2) provide for investigation of non-cognizable cases,
laying down that no police officer shall investigate a non-cognizable case
without the orders of a Magistrate having power to try such case or
commit such case for trial. The application submitted by the SHO, Police
Station Tughlak Road, for the registration of the case
under Section 182 IPC and the investigation thereon was in accordance
with the legislative mandate as set down in Section 155(2). The order of
the learned ACMM dated 8th June, 2006 was, therefore, an order passed
in exercise of the powers vested in the ACMM by virtue of Sub-
section (2) of Section 155. No cognizance, as contended by Mr. Luthra,
was taken by learned ACMM by order dated 8th June, 2006. Applying
the same analogy, Ms. Gupta contended that the further contention of Mr.
Luthra that, the learned ACMM had gravely erred by taking cognizance
in the present case time and again, i.e., on 8th June, 2006 and again on
4th November, 2006, does not hold water.

53. The contention of Mr. Siddarth Luthra, the learned senior counsel for
Dr. Prasad Rao that cognizance was taken by the learned ACMM on two
different occasions, that is, on 8th June, 2006 and 4th November, 2006
and his further contention that the learned ACMM was bound to follow
the procedure laid down in Chapter XV of the Cr.P.C. as set out
in Sections 200-203, i.e., to record pre-summoning evidence, is again not
borne out by the records. Clearly, no cognizance was taken by the learned
ACMM by her order dated 8th June, 2006. The complainant/Inspector
Madanjit Singh had moved an application for investigation of a non-
cognizable offence and registration of an FIR in respect of the offence
under Section 182 IPC on 8th June, 2006 and on the same date, that is,
on 8th June, 2006, an order was passed by the learned ACMM directing
registration of the FIR and investigation into the offence
under Section 182 IPC. It was only after the submission of the Report by
the SHO, Police Station Sarita Vihar that cognizance was eventually
taken by the learned ACMM by her order dated 04.11.2006. The
contention of Mr. Luthra that the so called charge-sheet was only a Report
pursuant to an enquiry under Section 202 Cr.P.C. is also without merit.
In the instant case, clearly no orders were passed by the learned ACMM
under Section 202 of the Code. It is trite law that the investigation
envisaged by Section 202 contained in Chapter XV is different and
distinct from the investigation contemplated
under Sections 155 and 156 of the Code, contained in Chapter XII,
which deals with "Information To The Police And Their Powers To
Investigate".

183

S.M. Fazlul Haq And Anr. vs State on 6 March, 1963

On the 20th of November, 1960, a report was lodged by the Receiver alleging that the
applicants had removed the Receiver's locks on the shop in dispute. The Police took no
action, and thereupon the Receiver made a report to the learned Civil Judge, who
lodged a report with the Police by his letter dated 21/22-11-1960. In the meantime the
applicant's first appeal from order against the order of the learned Civil Judge dated 18-
11-1960 appointing Sri Daya Shanker Mehrotra as Receiver, which had been filed some
time after the 2oth of November, 1960, was admitted and this Court stayed the
operation of the order of the learned Civil Judge. On the report lodged by the learned
Civil Judge the Police submitted a final report in the year 1960. The matter was re-
investigated and a final report was submitted by the Police a second time in the year
1961. The learned Judicial Officer thereafter directed the Police to submit a charge-
sheet. In consequence, the Police submitted a charge-sheet
under Sections 183, 448 and 454 Indian Penal Code against the applicants. The
gravamen of the offence alleged against the applicants is that they committed trespass
by interfering with the Receiver's possession over the shop in dispute.