advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Wednesday, January 11, 2017

“There is an absolute bar against the Court taking seisin of the case under S.182 I.P.C. except in the manner provided by S.195 Crl.P.C. Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. The offence under S.182 is complete when a person moves the public servant for action. Where a person reports to a Tehsildar to take action on averment of certain facts, believing that the Tehsildar would take some action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be launched, that the complaint in writing should be made by the Tehsildar, as the public servant concerned under S.182, and not leave it to the police to put a charge-sheet. The complaint must be in writing by the public servant concerned. The trial under S.182 without the Tehsildar’s complaint in writing is, therefore, without jurisdiction ab initio.” (Emphasis supplied) 12) It is not in dispute that in this case, the prosecution while initiating the action against the appellant did not take recourse to the procedure prescribed under Section 195 of the Code. It is for this reason, in our considered opinion, the action taken by the prosecution against the appellant insofar as it relates to the offence under Section 182 IPC is concerned, is rendered void ab initio being against the law laid down in the case of Daulat Ram (supra) quoted above. 13) Learned counsel for the respondent (NCT Delhi), however, submitted that the State has, therefore, made a fresh application in this behalf before the Trial Court which, according to him, is still pending consideration. Be that as it may. 14) We express no opinion on such application, if it is filed by the State as, in our view, it has to be dealt with on its own merits in accordance with law by the Court concerned.

Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL APPEAL No.64 of 2017
                (Arising out of S.L.P.(Crl.)No. 8184 of 2015)




Saloni Arora                                       Appellant(s)



                             VERSUS



State of NCT of Delhi                         Respondent(s)



                                    WITH

                        CRIMINAL APPEAL No.65 of 2017
                (Arising out of S.L.P.(Crl.)No. 1908 of 2016)



                               J U D G M E N T



Abhay Manohar Sapre, J.

1)    S.L.P.(Crl.) No. 8184  of  2015  is  filed  against  the  order  dated
06.07.2015 passed by the High Court of Delhi at New Delhi  in  Crl.M.C.  No.
2447 of 2012 whereby the High Court disposed of the  petition  and  directed
the Registrar General of the High Court of Delhi to make a formal  complaint
in terms of paragraph 27 in Criminal Revision Petition No. 497 of  2008  for
prosecution of the appellant herein under Section 182 of  the  Indian  Penal
Code, 1860 (hereinafter referred to as “IPC”).

2)    S.L.P.(Crl.)No.  1908  of  2016  is  filed  against  the  order  dated
01.02.2016 passed by the High Court of Delhi in Crl.M.A. No.  1775  of  2016
filed by the Registrar General of High Court of Delhi in Crl.M.C.  No.  2447
of 2012 whereby the High Court modified its earlier order  dated  06.07.2015
and directed the S.H.O., Police Station Anand Vihar, Delhi to make a  formal
complaint in terms of the order dated  06.07.2015,  in  place  of  Registrar
General of the High Court of Delhi,  who  was  directed  to  make  a  formal
complaint for prosecution of the appellant under Section 182 IPC.

3)    Leave granted.

4)    We herein set out  the  facts,  in  brief,  to  appreciate  the  issue
involved in these appeals.

5)    These appeals arise  out  of  criminal  proceedings  (SC  No  13/2007)
pending in the Court of Additional Session Judge, Delhi in relation  to  the
offences registered under Sections 120-B, 201, 302, 364 and 365 IPC  against
the accused on the basis of FIR No. 333/2006 PS: SPL. Cell.

6)    In  the  aforementioned  proceedings,  the  State  Prosecuting  Agency
sought to prosecute the appellant for commission of  an  offence  punishable
under Section 182 IPC. The appellant, felt aggrieved of this action  of  the
prosecuting agency, filed an application for her  discharge  on  the  ground
that since no procedure as contemplated under Section 195  of  the  Code  of
Criminal Procedure,  1973  (hereinafter  referred  to  as  “the  Code”)  was
followed by the prosecution, the appellant cannot  be  prosecuted  for  such
offence.

7)    The Trial Court, by order dated 25.05.2015, dismissed the  appellant's
application and the order of the Trial Court was upheld by the  High  Court,
by impugned order, by dismissing the appellant's Criminal Misc.  Application
giving rise to filing of these appeals by special  leave  by  the  appellant
before this Court.

8)    Heard Mr. Ajay Choudhary, learned counsel for the  appellant  and  Mr.
A.N.S. Nandkarni, learned ASG for the State.

9)    Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, and  further  since  the  learned  counsel  for  the
respondent in the  course  of  his  submissions  fairly  conceded  that  the
impugned order is not legally sustainable on a point  of  law  and,  in  our
view rightly so, we are inclined to allow the  appeals  and  set  aside  the
impugned orders.

10)   As rightly pointed out by the learned counsel for the parties  on  the
strength of law laid down by this Court in  the  case  of   Daulat  Ram  vs.
State of Punjab, (AIR 1962 SC 1206) that in order to  prosecute  an  accused
for an offence punishable under Section 182 IPC, it is mandatory  to  follow
the procedure prescribed under Section 195 of the Code else such  action  is
rendered void ab initio.

11)   It is apposite to reproduce the law laid down by  this  Court  in  the
case of Daulat Ram (supra) which reads as under:

 “There is an absolute bar against the  Court  taking  seisin  of  the  case
under S.182 I.P.C. except in the manner provided by S.195 Crl.P.C.

      Section 182 does not require that action must always be taken  if  the
person who moves the public servant knows or believes that action  would  be
taken.  The offence under S.182 is complete when a person moves  the  public
servant for action.  Where a person reports to a Tehsildar  to  take  action
on averment of certain facts, believing that the Tehsildar would  take  some
action upon it, and the facts alleged in the report are found to  be  false,
it is incumbent, if the prosecution is to be launched,  that  the  complaint
in writing should be made by the Tehsildar, as the public servant  concerned
under S.182, and not leave it to the police  to  put  a  charge-sheet.   The
complaint must be in writing by the public  servant  concerned.   The  trial
under S.182 without the Tehsildar’s  complaint  in  writing  is,  therefore,
without jurisdiction ab initio.”     (Emphasis supplied)



12)   It is not  in  dispute  that  in  this  case,  the  prosecution  while
initiating the action against the appellant did not  take  recourse  to  the
procedure prescribed under Section 195 of the Code. It is for  this  reason,
in our considered opinion, the action taken by the prosecution  against  the
appellant insofar as it relates to the offence  under  Section  182  IPC  is
concerned, is rendered void ab initio being against the  law  laid  down  in
the case of  Daulat Ram (supra) quoted above.

13)   Learned counsel for the respondent  (NCT  Delhi),  however,  submitted
that the State has, therefore, made  a  fresh  application  in  this  behalf
before  the  Trial  Court  which,  according  to  him,  is   still   pending
consideration.  Be that as it may.

14)   We express no opinion on such application,  if  it  is  filed  by  the
State as, in our view, it has  to  be  dealt  with  on  its  own  merits  in
accordance with law by the Court concerned.

15)   In the light of foregoing discussion,  the  appeals  succeed  and  are
allowed. Impugned orders stand set aside.

                                     ………..................................J.
  [A.K. SIKRI]



                                    .……...................................J.
                [ABHAY MANOHAR SAPRE]



      New Delhi,
      January 10, 2017
-----------------------
7





No comments:

Post a Comment

Note: Only a member of this blog may post a comment.