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TMI Blog2025 (4) TMI 1590X X X X Extracts X X X X X X X X Extracts X X X X ..... 1860 ('IPC'). 3. The gravamen of the petitioners' challenge to the charges framed under section 174-A IPC was that cognizance of offence under the same could only be taken on a complaint in writing by the public servant concerned and the bar under Section 195(1)(a)(i) Cr.P.C. would apply. 4. The Sessions Court, in the impugned order, relied on the Judgment of a Single Bench of this Court in Maneesh Goomer v State 2012 SCC OnLine Del 66 which held that Section 174-A IPC was not covered by the bar of Section 195 Cr.P.C. The petitioners seek to argue otherwise, relying on various decisions of the Supreme Court and other High Courts. Factual Background 5. A brief factual matrix is that a complaint case was filed under Section 138 of the Negotiable Instruments Act, 1881 ('NI Act') by M/s Tyagi Pipe Craft Pvt. Ltd. against the petitioners Amandeep Gill and Ekta Gill, who are directors of M/s Naturex Oil Pvt. Ltd. 6. Process under Section 82-83 Cr.P.C was issued against the accused/petitioners; subsequently registration of an FIR was directed by the Trial Court by order dated 17th May 2013 for offence under section 174-A IPC against the two accused persons/petitioners. 7. Chargeshee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub-clause (ii), except on the complaint in writing of that Court [or by such officer of the Court as that Court may authorise in writing in this behalf], or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act, if declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and that is why though all other offences under chapter X of the Criminal Procedure Code are noncognizable, offence punishable under Section 174-A IPC is cognizable. Thus the Police officer on a complaint under Section 174-A IPC is competent to register FIR and after investigation thereon file a charge-sheet before the Court of Magistrate who can take cognizance thereon. Thus, I find no merit in the contention raised by the Learned Counsel for the Petitioner." (emphasis added) 10. The petitioner's counsel has underscored, the fact that Maneesh Goomer (supra) incorrectly noted that offences prescribed under Section 195 C.r.P.C are all non-cognizable and Section 174-A was introduced in C.r.P.C w.e.f. 23rdJune 2006 and the legislature was conscious of the fact that it was a cognizable offence, thereby mandating the Police Officer to register the FIR after investigation and after investigation file a chargesheet. 11. He stated that even Section 188 IPC, which is also covered under Section 195 C.r.P.C bar, is cognizable and, therefore, the test to determine whether it would fall within the bar contained in 195 Cr.P.C., is not relatable to whether the offence is cognizable or not. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 195(1)(b) Cr. P.C. in 2006, Section 195(1)(a)(i) Cr. P.C. was kept untouched knowingly by the legislature. The above position clearly reveals that while inserting Section 174-A I.P.C., legislature was well aware that in Section 195(1)(a)(i) Cr. P.C., apart from Section 188 I.P.C., one more cognizable offence i.e. 174-A I.P.C. is being inserted for providing the bar of cognizance on the part of court for offences mentioned in Section 195(1)(a)(i) Cr. P.C., except on the complaint. ... 15. This Court is also of the view that proceedings u/s 174- A I.P.C. is initiated for providing punishment to the person who despite initiation of proceedings u/s 82 Cr. P.C. against him, failed to comply with the same and despite making the same as cognizable offence, it was included u/s 195(1)(a)(i) Cr. P.C. so as to prohibit the police from making unnecessary harassment of the accused as the police had already been proceeding against him u/s 82 Cr. P.C. Therefore, the sole purpose of legislature by putting Section 174-A in the category of offence mentioned in Section 195(1)(a)(i) Cr. P.C. is to make act of accused punishable for not honouring the process u/s 82 Cr. P.C. and also to protect the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra), with the utmost respect, I have a different take on the same. Notably, the introduction of Section 174-A into the IPC was accompanied by a corresponding amendment in Schedule 1 of the Cr. P.C. This amendment classified the aforementioned offence as cognizable. However, Section 195 of the Cr. P.C. was consciously not amended correspondingly to exclude Section 174-A from its ambit, as is now being proposed through Section 215 of 'The Bhartiya Nagrik Suraksha Sanhita 2023 Bill'. Said Bill currently under consideration of the legislature. The omission of Section 174-A from the scope of Section 195 of the Cr. P.C. cannot, therefore, be also characterized as a mere oversight, especially in light of the deliberate amendment in Schedule-1, while Section 195 ibid was conspicuously left untouched." ... 12.12. Be that as it may, it is unmistakably evident that the omission of Section 174-A from the purview of Section 195 of the Cr.P.C. cannot be treated as a mere inadvertent oversight. It gets more particularly obvious, when viewed through the lens of the deliberate simultaneous legislative action taken to amend Schedule-1. This deliberate choice to eschew any alteration in Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writing in this behalf, or of some other Court to which that Court is subordinate]. Admittedly in the case in hand, no complaint in writing has been made by the Court or by any of its Officers authorized to do so of whose order has allegedly been disobeyed by the accused (petitioner-herein). As per the case of prosecution, the case in hand was registered against accused (petitioner- herein) on the basis of some secret information. 7. Some of the case laws pertaining to above point in issue are asunder:- i. Daulat Ram vs. State of Punjab, AIR 1962 Supreme Court 1206 (Full Bench). In this case the accused was tried for the offence underSection 182, IPC. Report was made to Tehsildar with a view to take action against the accused which was found false. Tehsildar did not move any complaint as required under Section 195, Cr.P.C., for taking action against the accused. It was held that Section 195, Cr.P.C., contemplates that a complaint must be in writing by the public servant concerned. The cognizance of the case was held to be wrongly assumed by the Court, there being no complaint in writing of public servant namely Tehsildar. The trial was thus without jurisdiction ab-initio an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, such court is precluded from taking cognizance in any other manner." (emphasis added) 14.6 This Court in Sunil Tyagi v. State (2021) SCC OnLine Del 3597 held as under: "9. This Court is of the view that declaring a person as a proclaimed offender leads to a serious offence under Section 174-A IPC which is punishable for a period up to 3 or 7 years. It affects the life and liberty of a person under Article 21 of the Constitution of India and it is necessary to ensure that the process under Sections 82 and 83 CrPC is not issued in a routine manner and due process of law is followed. The second important aspect is that once a person has been declared as a proclaimed offender, it is the duty of the State to make all reasonable efforts to arrest him and attach his properties as well as launch prosecution under Section 174-A IPC. ... 131. The complainant shall also disclose additional addresses of the relatives of the accused even though service at those addresses may or may not be treated as due service upon the accused. (Agreed by CBI and DP) ... Procedural compliance requirements of Section 195 CrPC requirements 351. In prosecution of cases of Section 174-A IPC, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court in C. Muniappan (supra) does not deal with Section 174-A directly, it would be difficult to draw an artificial distinction between Section 174-A IPC and Section 188 IPC, despite both being covered in the category of Sections 172-188, in Section 195(1)(a)(i) Cr.P.C. Maneesh Goomer (supra) does not take into account the decision in C. Muniappan (supra), which was probably not brought to the attention of the Court and, therefore, in Maneesh Goomer (supra) an independent analysis and interpretation was done, reaching a conclusion that since Section 174-A IPC was the only cognizable offence in the category covered under Section 195 C.r.P.C., it was a conscious inclusion by the legislature and, therefore, would stand on its own footing. It would be difficult to support such an interpretation in view of C. Muniappan (supra). 21. To clarify the sequence of legislative activity in regard to Section 195 Cr.P.C. and Section 174-A of IPC it is to be noted that Section 195 & 195(1)(a)(i) Cr.P.C. has been on the statute book since 1973 and includes Section 172-188 IPC. By an amendment by 'Act 25 of 2005', Section 174-A was inserted w.e.f 23rd June, 2006. Therefore, on the date when sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce described in sub-section (1) of section 336, or punishable under sub-section (2) of section 340 or section 342 of the said Sanhita, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court; or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub-clause (ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant or by some other public servant who has been authorised to do so by him under clause (a) of sub-section (1), any authority to which he is administratively subordinate or who has authorised such public servant, may, order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause ..... X X X X Extracts X X X X X X X X Extracts X X X X
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