# Chandradhar Gaur Revisionist v. State of U.P. 1866 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2025) 5 ILRA 1865
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-17
- **Case number:** Criminal Revision No. 3355 of 2018
- **Bench:** Avnish Saxena
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandradhar-gaur-revisionist-v-state-of-u-p-1866-indian-law-reports-allahabad-53371
- **Pages:** 15

## Headnote

Criminal Procedure Code, 1973 - Sections
345, 346, 352 & 195 - Indian Penal Code,
1860 - Sections 188 & 228 - Contempt in
the face of Court - Scope of power of
subordinate criminal courts - Procedure
under Section 345 Cr.P.C. - Conviction of
Investigating Officer by Special Judge
(POCSO)
for
disobedience
of
judicial
direction - Held, conviction under Section
188 IPC without following procedure
under Sections 345 & 195 Cr.P.C. illegal -
Offence
not
committed
in
view
or
presence of Court - Trial Court acted de
hors its jurisdiction - Conviction and
sentence set aside. (Paras 18, 20, 24, 25,
27 and 28)

HELD:
The plain reading of Section 345 Cr.P.C.
transpires that the concerned provision is
attracted when the offence of Indian Penal Code
described under Section 175 (omission to
produce document or electronic record to public
servant by person legally bound to produce it),
Section 178 (refusing oath or affirmation when
duly required by public servant to make it), Section
179 (refusing to answer public servant authorised
to question), Section 180 (refusing to sign
statement); or Section 228 (intentional insult or
interruption to public servant sitting in judicial
proceeding) is committed, but the condition
prerequisite in exercise of Section 345 Cr.P.C. is
that the offence(s) is committed 'in the view or
presence of any civil, criminal or revenue court'. In
the present case the alleged offence has not been
considered to have been committed in view of or
in presence of the learned trial court because the
substance of show cause notice only shows that
the Court has initiated to proceed in disobedience
of its order passed during the investigation of the
case. (para 18)

This Court has found that the proceeding by the
learned trial court has not been carried out
under Section 345 Cr.P.C., but it is the one that
has been conducted purely and explicitly under
Section 188 IPC. It is required to be considered,
whether the learned trial court has rightly
convicted the revisionist under Section 188 IPC,
though, Section 346 Cr.P.C. provides that if the
Court is of the opinion that the case should not
be disposed of under Section 345 Cr.P.C. then
the case shall be forwarded to the Magistrate
having jurisdiction to try the same; and Section
352 Cr.P.C. has taken away the power of
contempt from the criminal court other than the
Judge of a High Court. (Para 20)

Even if, it is considered that the learned trial
court has registered a case against the
revisionist for offence under Section 188 IPC on
the basis of application of Special Court
Ahalmad, Narendra Kumar and Court Moharrir,
Bharat Singh, as a complaint, then the learned
trial court has got no jurisdiction to try the case
in view of Sections 345 and 346 Cr.P.C.. It is
further required to point out here that the said
alleged cognizance has been taken by the
learned trial court on 19th September, 2018 and
on 20th September, 2018 the impugned
judgement of conviction has been recorded and
sentence has been awarded against the
revisionist. It is also a matter of grave concern
that no material and evidences were adduced
before the trial court in a day, which led to the
basis of conviction of revisionist. It is further, a
matter
of
grave
concern
that
the
revisionist/accused has not been given a fair
chance to give his explanation or to defend his
case and the trial court has reached to the
conclusion, that the alleged disobedience on the
part of the revisionist/accused has cause danger
to human life, health or safety or causes a riot
or affray and therefore punish with a graver
punishment of six months and fine of Rs.
1,000/-, which has got no rational basis. (Para
24)

The matter in hand has it's genesis on the
report of Ahalmad and Court Moharrir of the
Court. The record is silent about the authority of
the two officials of the court to submit report
against the Investigating Officer of a case and
how such a report qualified the term 'Complaint',
provided under Section 195 Cr.P.C., but this
Co

## Text

_Characters 0–38,955 of 50,857. This is a partial read: ask again with offset=38955 for what follows._

5 All. Chandradhar Gaur Vs. State of U.P.
1865
1998 and substantive offence thereof are
made out against the applicants and other
persons and therefore the authority has
accorded sanction under Section 19 of
Prevention of Corruption Act, 1988 for
prosecution of the applicants and other
persons 'for the said offences and for any
other offence(s) punishable under any other
provisions of law in respect of the said acts
and for taking cognizance of the said
offences
by
a
court
of
competent
jurisdiction'.

42. The learned trial court has rejected
the discharge application for the reason that
sanction order is very detailed and it runs
into eleven pages showing that sanction for
prosecution under Section 120-B read with
409, 418, 419, 420, 467, 468, 471, 477 (A)
I.P.C. and Section 13 (2) read with 13 (1)
(d) of Prevention of Corruption Act, 1998
has been granted by the authority which
was competent for granting sanction for
prosecution of the aforesaid offences.

43. While recording the aforesaid
reason, the learned trial court failed to
appreciate that neither any sanction had
been sought for prosecution of the
applicants for the offences under Penal
Code nor was the authority competent to
grant sanction for prosecution of the
offences under the Penal Code. The
sanction of prosecution "for the said
offences and for any other offence(s)
punishable under any other provisions of
law in respect of the said acts" for which no
sanction was obtained, indicates a total
non-application of mind to the facts of the
case and the law applicable. It indicates
that the sanctioning authority has acted as a
mere rubber stamp. Non-application of
mind by the sanctioning authority vitiates
the sanction order dated 02.02.2023 as also
the order dated 28.07.2023 passed by the
trial
Court
rejecting
the
discharge
application.

44. The order of sanction after a
proper application of mind to the relevant
facts and circumstances of the case and
the material on record is a prerequisite for
prosecution of a public servant, as it is
intended to provide a safeguard to a
public servant against frivolous and
vexatious litigants. This safeguard cannot
be dealt with in a casual and mechanical
manner.

45.
In
view
of
the
aforesaid
discussions, the application under Section
482 Cr.P.C. stands allowed. The sanction
order dated 02.02.2023 and the order dated
28.07.2023 passed by the learned Special
Judge, C.B.I.-I, Lucknow in Sessions Case
No. 341 of 2022 arising out of RC
No.053202150002, under Sections 120-B
read with Sections 409, 418, 419, 420, 467,
468, 471, 477 (A) I.P.C. and Section 13 (2)
read with 13 (1) (d) of Prevention of
Corruption Act, 1988, Police Station C.B.I.
S.C.B.,
Lucknow,
whereby
their
application for discharge has been rejected,
are quashed and the discharge application
of the applicants is allowed for the
aforesaid defect in the sanction order dated
02.02.2023.
---------
(2025) 5 ILRA 1865
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2025

BEFORE

THE HON'BLE AVNISH SAXENA, J.

Criminal Revision No. 3355 of 2018

Chandradhar Gaur ...Revisionist
Versus
State of U.P. ...Opposite Party
1866 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Revisionist:
Sri Alok Ranjan Mishra, Mrs. Amrita Rai
Mishra,
Sri
Gopal
Swarup
Chaturvedi
(Senior Adv.)

Counsel for the Opposite Parties:
G.A.

Criminal Procedure Code, 1973 - Sections
345, 346, 352 & 195 - Indian Penal Code,
1860 - Sections 188 & 228 - Contempt in
the face of Court - Scope of power of
subordinate criminal courts - Procedure
under Section 345 Cr.P.C. - Conviction of
Investigating Officer by Special Judge
(POCSO)
for
disobedience
of
judicial
direction - Held, conviction under Section
188 IPC without following procedure
under Sections 345 & 195 Cr.P.C. illegal -
Offence
not
committed
in
view
or
presence of Court - Trial Court acted de
hors its jurisdiction - Conviction and
sentence set aside. (Paras 18, 20, 24, 25,
27 and 28)

HELD:
The plain reading of Section 345 Cr.P.C.
transpires that the concerned provision is
attracted when the offence of Indian Penal Code
described under Section 175 (omission to
produce document or electronic record to public
servant by person legally bound to produce it),
Section 178 (refusing oath or affirmation when
duly required by public servant to make it), Section
179 (refusing to answer public servant authorised
to question), Section 180 (refusing to sign
statement); or Section 228 (intentional insult or
interruption to public servant sitting in judicial
proceeding) is committed, but the condition
prerequisite in exercise of Section 345 Cr.P.C. is
that the offence(s) is committed 'in the view or
presence of any civil, criminal or revenue court'. In
the present case the alleged offence has not been
considered to have been committed in view of or
in presence of the learned trial court because the
substance of show cause notice only shows that
the Court has initiated to proceed in disobedience
of its order passed during the investigation of the
case. (para 18)

This Court has found that the proceeding by the
learned trial court has not been carried out
under Section 345 Cr.P.C., but it is the one that
has been conducted purely and explicitly under
Section 188 IPC. It is required to be considered,
whether the learned trial court has rightly
convicted the revisionist under Section 188 IPC,
though, Section 346 Cr.P.C. provides that if the
Court is of the opinion that the case should not
be disposed of under Section 345 Cr.P.C. then
the case shall be forwarded to the Magistrate
having jurisdiction to try the same; and Section
352 Cr.P.C. has taken away the power of
contempt from the criminal court other than the
Judge of a High Court. (Para 20)

Even if, it is considered that the learned trial
court has registered a case against the
revisionist for offence under Section 188 IPC on
the basis of application of Special Court
Ahalmad, Narendra Kumar and Court Moharrir,
Bharat Singh, as a complaint, then the learned
trial court has got no jurisdiction to try the case
in view of Sections 345 and 346 Cr.P.C.. It is
further required to point out here that the said
alleged cognizance has been taken by the
learned trial court on 19th September, 2018 and
on 20th September, 2018 the impugned
judgement of conviction has been recorded and
sentence has been awarded against the
revisionist. It is also a matter of grave concern
that no material and evidences were adduced
before the trial court in a day, which led to the
basis of conviction of revisionist. It is further, a
matter
of
grave
concern
that
the
revisionist/accused has not been given a fair
chance to give his explanation or to defend his
case and the trial court has reached to the
conclusion, that the alleged disobedience on the
part of the revisionist/accused has cause danger
to human life, health or safety or causes a riot
or affray and therefore punish with a graver
punishment of six months and fine of Rs.
1,000/-, which has got no rational basis. (Para
24)

The matter in hand has it's genesis on the
report of Ahalmad and Court Moharrir of the
Court. The record is silent about the authority of
the two officials of the court to submit report
against the Investigating Officer of a case and
how such a report qualified the term 'Complaint',
provided under Section 195 Cr.P.C., but this
Court is of the view that the suo-moto report of
the court Ahalmad and court Moharrir cannot be
5 All. Chandradhar Gaur Vs. State of U.P.
1867
considered as a 'complaint'. Moreover, the
record is also silent that the orders and
directions issued by the Special POCSO Judge to
the Investigating Officer of case crime no. 508
of 2018 is a time bound order. The judgement is
also silent on the point whether any date has
been fixed for compliance of the said order.
Further, the proceeding reflects that no charge
under Section 188 IPC has been framed against
the
revisionist,
in
absence
whereof
the
proceedings, conviction and sentence became
improper and legally not tenable and liable to be
set aside. (Para 27)

Revision allowed. (E-14)

List of Cases cited:

1. Chinubhai Keshav-lal Nanavati Vs K.J. Mehta,
[1978 Cr.L.J.1040 (DB) 447]

2. C. Muniappan & ors. Vs St. of T.N., AIR 2010
SC 3718

3. M.S. Ahlawat Vs St. of Har. & anr., (2001) 1
SCC 278

4. C.R. Rajesekaran Vs Judicial Magistrate,
Nagapattinam, 2003 SCC OnLine Mad 128

5. S. Rajanikanth Vs Tmt. C. Thirumagal, 2011
SCC OnLine Mad 793

6. St. of M.P. Vs Revashankar, AIR 1959 SC 102

(Delivered by Hon'ble Avnish Saxena, J.)

1. The present revision has been
preferred under Section 397 read with
Section
401
Cr.P.C.
by
the
revisionist/accused-
Chandradhar
Gaur,
(Investigating Officer of case crime no. 508
of 2018 registered under Section 354 IPC
and Sections 7, 8 of Protection of Children
from Sexual Offences Act, 2012 (POCSO),
Police Station-Chhata, District Mathura),
on being aggrieved by judgement of
conviction
and
sentence
dated
20th
September, 2018 passed by the Court of
Special Judge (POCSO Act), Mathura, in
Criminal Misc. Case No. 429 of 2018
whereby invoking Section 345 Cr.P.C.
convicted the revisionist/accused under
Section 188 IPC and punished him by
sentence of six months imprisonment as
well as fine of Rs. 1000/- and 10 days
simple imprisonment in default of payment
of fine.

APPEAL OR REVISION :-

2. Though, Section 351 Cr.P.C.
provides remedy of appeal for conviction
recorded, inter alia, under Section 345
Cr.P.C., but the revision has been preferred,
as the learned trial court has convicted and
sentenced the revisionist/accused for an
offence under Section 188 IPC, which is
not provided under Section 345 Cr.P.C.,
therefore, the correctness, legality and
regularity of proceeding, propriety of
findings recorded by the trial court has
been challenged in revision instead of
appeal. It has been held by the Division
Bench of the Gujarat High Court in the
case of Chinubhai Keshav-lal Nanavati
Vs. K.J. Mehta that in case of unjust
conviction, moving a Criminal Court in
appeal or revision is the right course of
action. Therefore, the revision.

3. Before venturing into the present
matter, it would be expedient to consider
it's genesis, which arose from case crime
no. 508 of 2018, P.S. Chhata, District
Mathura.

PROSECUTION CASE OF CASE
CRIME NO. 508 OF 2018 :-

4. The informant- Devaki Nandan has
lodged the first information report at P.S.
Chhata, District Mathura on 28th August,
2018 at 11:51 hours under Section 354 IPC
and Sections 7, 8 of POCSO Act for the
1868 INDIAN LAW REPORTS ALLAHABAD SERIES
offence committed with his elder daughter
'X' by accused Ishwar Dayal on 7th July,
2018 at 16:00 hours on Nagla Dharampur
Road, P.S. Chhata, District Mathura, when
the informant's elder daughter aged about
10 years went for nature's call along with
her younger sister aged about 3 years, at
that time the accused aged about 40 years
reached there and gave Rs. 10/- to the
victim and allured her to come to his
residence for taking Rs. 10/-. The victim
when refused to accept Rs. 10/-, the
accused has caught hold of her cheeks and
started doing obscene act by removing his
cloths. At this juncture, the informant's
mother-Smt. Sumitra, wife-Shimla, Sundar
son of Ram Swarup and Mano son of
Pappu, all resident of Khaira, P.S.Chhata,
District Mathura came there, witnessed the
incident and saved the victim. The
investigation of the case has been entrusted
to S.I.-Vipin Sharma, as is revealed from
the above FIR (annexed as Annexure-3).

GENESIS OF CRIMINAL MISC.
CASE NO. 429 OF 2018 (State Vs.
Chandra Dhar Gaur) :-

5. The impugned judgement reveals
that the Presiding Special Judge, POCSO
Act had issued certain directions as to who
shall be the investigating officer and further
directions regarding investigation of the
case, which purportedly has not been
complied by the Investigating Officer. One
of the direction issued by the Special
Judge, led to the filing of report dated 19th
September, 2018 by Ahalmad of the Court
Sri Nagendra and Court Moharrir Sri
Bharat Singh against the revisionist, that he
has not complied with the directions issued
by the Court. Hence, registration of Misc.
Case no. 429 of 2018 under Section 345
Cr.P.C. read with Sections 228 and 188
IPC on 19th September, 2018. On the same
day, after registration of the aforesaid case,
a show cause notice was issued to the
revisionist for 20th September, 2018 to
furnish reply. It is revealed from the
impugned judgement that the reply has not
been filed and the conviction has been
recorded in absence of the revisionist, who
was sentenced accordingly.

6. As the impugned judgement is
being dealt with at a later stage of
discussion, hence, the same has not been
considered under this head.

GROUNDS
TAKEN
BY
THE
REVISIONIST :-

7. The revisionist while assailing the
judgement and order of conviction and
sentence has inter alia, taken the grounds
that the statement of victim got recorded
under Section 164 Cr.P.C. on 20th
September, 2018 by an Additional Civil
Judge (J.D.), Court No.8, Mathura and no
allegation has been made by her against the
police personnel; the impugned judgement
is illegal, contrary to law and against the
provisions of Cr.P.C.; the revisionist has
conducted proper investigation of the case
and complied all the orders of the court
concerned; the impugned judgement and
order of conviction has been made in
contravention to the provision of Section
352 Cr.P.C. after taking cognizance of
offence under Section 345 Cr.P.C. read
with Sections 228 and 188 IPC; the court
concerned has got no jurisdiction to
proceed with the case in view of Section
195 Cr.P.C. to punish a person in contempt
of his own authority; the record of the case
in which the revisionist has been convicted
and sentenced does not have any material
against the revisionist on the basis of which
the impugned judgement has been passed;
the impugned judgement and order has
5 All. Chandradhar Gaur Vs. State of U.P.
1869
been passed in contravention to the
principles of natural justice; the judgement
of conviction and thereafter punishment has
been made against the revisionist in his
absence, without giving proper opportunity
of hearing; the orders passed during the
investigation suffers the test of legality of
procedure and jurisdiction; and the court
concerned
has
passed
the
impugned
judgement in absence of bonafide, because
vide Notification dated 17th September,
2018, the Presiding Judge has been
transferred from the court concerned and
before
leaving
the
charge
on
20th
September, 2018, passed the impugned
judgement in haste. As such, it has been
prayed that the impugned judgement and
order of sentence is liable to be set aside.

ARGUMENTS OF PARTIES:-

8. Sri G.S.Chaturvedi, learned Senior
Counsel assisted by Sri Alok Ranjan,
learned counsel for the revisionist has
submitted besides the written submission
that the impugned judgement and order has
been passed against the principles of
natural justice; against the provision of
Cr.P.C., particularly Section 352 Cr.P.C.;
wrongly invoking Section 345 Cr.P.C.;
convicted the revisionist under Section 188
IPC, in the garb of punishing for Contempt
of Court, which is the exclusive jurisdiction
of High Court. It is further submitted that
the learned court has acted malafidely, as
the criminal misc. case has been registered
on 19th September, 2018, the show cause
notice has been sent to the revisionist on
the same day during night for 20th
September, 2018, calling for explanation of
revisionist and without adducing evidence,
the order of conviction has been recorded
on the very next day of inception of case. It
is further submitted that the revisionist has
neither been given the opportunity of
explanation nor his statement under Section
313 Cr.P.C. has been recorded. Moreover,
the offence of Section 188 IPC in which the
revisionist has been convicted is triable by
Magistrate. Lastly submitted, that the
exercise of jurisdiction by the court
concerned is flagrant misuse of process of
law, hence, prayed that the revision is liable
to be allowed. He has relied upon the cases
of C. Muniappan & others Vs. State of
Tamilnadu, M.S. Ahlawat Vs. State of
Haryana
and
Another,
C.
R.
Rajesekaran Vs. Judicial Magisstrate
Nagapattinam and S. Rajanikanth Vs.
Tmt.
C.
Thirumagal,
learned
VII
Metropolitan Magistrate, George Town,
Chennai-600001.

9. Sri Alok Sharma, learned AGA-I
has submitted that the judgement of
conviction and sentence has been passed by
learned Court after considering all the
material and evidence available on record,
after application of his judicial mind. It is
further submitted that Judge, POCSO Act
has got a right and duty to consider whether
the investigation in the cases of POCSO
Act has been rightly carried out by the
Investigating Officer or not. It is further
submitted that the learned Court when got
to know that the first information report of
the victim has not been registered by the
C.O., P.S. Chhata, District Mathura and
finds flaws in the investigation, directed an
investigation against the Police Officer,
which was found by the court not being
carried out in right direction, that led the
court to pass subsequent orders in the
interest of justice and fair investigation. It
is only then that the court has found that the
specific direction of the court given to the
Investigating Officer for investigation of
the case has not been complied with, hence,
the case has been registered against the
revisionist. It is further submitted that the
1870 INDIAN LAW REPORTS ALLAHABAD SERIES
learned trial court made an observation that
despite sending a show cause notice, the
revisionist neither appeared nor replied the
same, which led to passing of the impugned
judgement of conviction and sentence
against the revisionist. He submits that the
revision is liable to be dismissed and
impugned judgement of the trial court is
liable to be affirmed.

POINTS OF CONSIDERATION
AND DISCUSSION:-

10. This Court has taken into
consideration the rival submissions made
by the parties and perused the material
available on record. The Court does not
finds it proper to call for trial court record
at this juncture because this Court while
going through the arguments did not find it
proper to requisition the record, as all the
relevant record is before the Court, filed by
the parties.

11. The point of consideration in the
present revision are as follows:-

(i) Whether the learned trial
court has rightly taken up the matter
against the revisionist invoking Section
345 Cr.P.C.?

(ii) Whether the learned trial
court has rightly taken cognizance of
offence under Section 188 IPC against the
revisionist, proceeded with the trial and
convicted the revisionist?

12.

As
both
the
points
of
consideration arose in the present revision
are inter-twined, hence, have been taken up
together for discussion and adjudication.

13. The impugned judgement reveals
following facts that need to be dealt with :-

(a) On 7th July, 2018, the date of
incident, informant has approached Kotwali
Chhata, Mathura but his report was not
lodged, consequently, the informant gave
an application to S.S.P., Mathura on 31st
July, 2018 about the incident as well as
complaint against S.O., P.S. Chhata,
District Mathura.

(b) On the direction of S.S.P.,
Mathura dated 23rd August, 2018 to the
Head Moharrir, the first information report
in case crime no. 508 of 2018 under
Section 354 IPC and Sections 7, 8 of
POCSO Act has been registered in the
matter, but prior to the registration of the
first information report, the informant
entered a complaint dated 17th July, 2018
on the Complaint Portal against Sri Pramod
Pawar,
S.O.,
Police
Station-Chhata,
District-Mathura for not registering of first
information report of sexual offence.

(c) On 29th August, 2018 the
Special Court of POCSO Act has issued
direction in view of Section 21 of POCSO
Act and Section 166-A of IPC (instituted
by Act No. 13 of 2013 w.e.f. 3rd Feburay,
2013) directing that the investigation shall
be conducted by the Stations House Officer
of the concerned police station, who shall
also investigate the conduct of Sri Pramod
Pawar, S.O., P.S. Chhata, in dealing with
the present matter.

(d) On 12th September, 2018, the
Special Court, POCSO Act has issued
direction to produce the informant and
victim before the court for the grant of
compensation in case crime no. 508 of
2018.

(e) On 13th September, 2018, the
victim and informant were produced before
the court, it has been observed by the
Special Court that the statement of victim
has not been recorded and the statement of
informant recorded under Section 161
Cr.P.C. by the Investigating Officer is not
5 All. Chandradhar Gaur Vs. State of U.P.
1871
the
correct
statement
and
without
permission of the court, the informant and
victim were taken away from the court.

(f) On 18th September, 2018 the
victim was produced by the Investigating
Officer before the Special Court for
statement of victim under Section 164
Cr.P.C., which was directed to be recorded
by the Chief Judicial Magistrate. The
Special Court has also found that the case
diary contained incorrect statement of the
informant recorded under Section 161
Cr.P.C., which has the effect of exonerating
Sri Pramod Pawar, S.O., P.S. Chhata, as the
court has inquired from the informant that
he has not given such statement. On the
same date, the Special Court has directed
the Investigating Officer to arrest the
accused
Ishwar
Dayal
and
to
start
investigation against witnesses, namely,
Sundar and Mano for offence under Section
195-A IPC for pressurizing the informant
to enter into compromise in the matter.

(g) On 19th September, 2018, the
Ahalmad of Special Court Sri Narendra
Kumar and the Court Moharrir of the Court
Sri Bharat Singh gave an application to the
Special Court that the accused in case
crime no. 508 of 2018 has not been arrested
and the Investigating Officer-Chandra Dhar
Gaur (the present revisionist), is willfully
disobeying the orders of the Court. On the
basis of aforesaid application, Crl. Misc.
Case No. 429 of 2018 under Section 345
Cr.P.C. read with Sections 228 and 188
IPC was registered against the revisionist,
resultantly, a show cause notice was issued
against the revisionist to present on 20th
September, 2018 and to explain the
conduct. The show cause notice required
the following explanation:-

(i) Why the statement of victim
has not been recorded;

(ii)
Why
Inspector-Pramod
Pawar, S.O., P.S. Chhata has been
erroneously saved;

(iii) Why accused Ishwar Dayal
has not been arrested, which led to undue
pressure on informant and victim of case
crime no. 508 of 2018.

14. The Special Court observed that
the revisionist has not given explanation
and therefore, convicted the revisionist
under Section 188 IPC read with Section
345 Cr.P.C.

15. The judgement on it's face reveals
that the revisionist is not convicted and
sentenced under Section 345 Cr.P.C. read
with Section 228 IPC as is provided, but
the conviction is under Section 188 IPC
without following the procedure as is
provided under Sections 190 and 195
Cr.P.C.. According to Section 190 Cr.P.C.
the Magistrate and Special Court may take
congizance of offence, "(a) upon receiving
a complaint of fact which constitute such
offence; b) upon a police report of such
fact; (c) upon an information received from
any person other than the Police Officer, or
upon his own knowledge, that such offence
has been committed." Whereas, Section
195 Cr.P.C. deals with prosecuting certain
offences, including those against public
justice, contempt of lawful authority and
those relating to documents given in
evidence.

In the present case, the basis of
initiation of proceeding is the report made
by Court Ahalmad and Court Moharrir.

16. This Court without giving any
opinion as to the legality of directions
issued by the Special Court POCSO Act
during
investigation
of
the
case,
1872 INDIAN LAW REPORTS ALLAHABAD SERIES
concentrate itself to the legality of process
and tenability of impugned judgement.

17. Chapter XXVI of Cr.P.C.
provides as to the offences effecting the
administration of justice and chapter XIV
of Cr.P.C. deals with the conditions
requisite for initiation of such proceeding.
The offence affecting the administration of
justice are categorized in five categories,
provided under Sections 340, 344, 345, 349
and 350 of Cr.P.C.. As section 345 Cr.P.C.
has been invoked in the present case, as
such, focus has been made on this
provision alone. The provision of Section
345 Cr.P.C. is reiterated underneath:-

"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.

(2)In every such case the Court
shall record the facts constituting the
offence, with the statement (if any) made
by the offender, as well as the finding and
sentence.

(3)If the offence is under section
228 of the Indian Penal Code (45 of
1860), the record shall show the nature
and stage of the judicial proceeding in
which the Court interrupted or insulted
was sitting, and the nature of the
interruption or insult."

18. The plain reading of Section 345
Cr.P.C. transpires that the concerned
provision is attracted when the offence of
Indian Penal Code described under Section
175 (omission to produce document or
electronic record to public servant by
person legally bound to produce it),
Section 178 (refusing oath or affirmation
when duly required by public servant to
make it), Section 179 (refusing to answer
public servant authorised to question),
Section 180 (refusing to sign statement);
or Section 228 (intentional insult or
interruption to public servant sitting in
judicial proceeding) is committed, but the
condition prerequisite
in
exercise
of
Section 345 Cr.P.C. is that the offence(s) is
committed 'in the view or presence of any
civil, criminal or revenue court'. In the
present case the alleged offence has not
been considered to have been committed in
view of or in presence of the learned trial
court because the substance of show cause
notice only shows that the Court has
initiated to proceed in disobedience of its
order passed during the investigation of the
case.

19. It is further required to be
considered that the proceeding under
Section 345 Cr.P.C. is to be carried out in
the light of procedure provided under
Sections 346 and 352 Cr.P.C., which are
reiterated as under :-

"346. Procedure where Court
considers that case should not be dealt
with under Section 345.

(1)If the Court in any case
considers that a person accused of any of
5 All. Chandradhar Gaur Vs. State of U.P.
1873
the offences referred to in Section 345 and
committed in its view or presence should
be imprisoned otherwise than in default of
payment of fine, or that a fine exceeding
two hundred rupees should be imposed
upon him, or such Court is for any other
reason of opinion that the case should not
be disposed of under Section 345, such
Court,
after
recording
the
facts
constituting the offence and the statement
of the accused as hereinbefore provided,
may forward the case to a Magistrate
having jurisdiction to try the same, and
may require security to be given for the
appearance of such person before such
Magistrate, or if sufficient security is not
given shall forward such person in
custody to such Magistrate.
(2)The Magistrate to whom any case is
forwarded under this section shall proceed
to deal with, as far as may be, as if it were
instituted on a police report."

.......

.......

"352.
Certain
Judges
and
Magistrates not to cry certain offences
when
committed
before
themselves.-
Except as provided in sections 344, 345,
349 and 350, no Judge of a Criminal
Court (other than a Judge of a High
Court) or Magistrate shall try any person
for any offence referred to in section 195,
when such offence is committed before
himself or in contempt of his authority, or
is brought under his notice as such Judge
or Magistrate in the course of a judicial
proceeding."

20. This Court has found that the
proceeding by the learned trial court has
not been carried out under Section 345
Cr.P.C., but it is the one that has been
conducted purely and explicitly under
Section 188 IPC. It is required to be
considered, whether the learned trial court
has rightly convicted the revisionist under
Section 188 IPC, though, Section 346
Cr.P.C. provides that if the Court is of the
opinion that the case should not be
disposed of under Section 345 Cr.P.C. then
the case shall be forwarded to the
Magistrate having jurisdiction to try the
same; and Section 352 Cr.P.C. has taken
away the power of contempt from the
criminal court other than the Judge of a
High Court.

21. In the case of C. R. Rajesekaran
Vs. Judicial Magistrate Nagapattinam
(supra), the Single Judge of Madras High
court in paragraphs, 6, 7 and 10 to 12 has
observed about the cognizance of offence
under Section 345 Cr.P.C. and Section 228
IPC taken by the Court concerned in
contravention to the provisions of Cr.P.C,
the relevant extracts are quoted herein
below:-

"6.Section 228 IPC reads as
follows:-

"Whoever intentionally offers
any insult, or causes any interruption to
any public servant, while such public
servant is sitting in any stage of a judicial
proceeding, 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."

xxxx

7.The Supreme Court had an
occasion to analyze this Section in the
decision made in State of Madhya
Pradesh Vs. Revashankar reported in AIR
1959 SC 102 wherein Their Lordships
have
stated
that
there
are
three
ingredients essential for attracting Section
228 IPC they being, (1) Intention, (2)
Insult to interruption to a public servant
and (3) The public servant insulted or
1874 INDIAN LAW REPORTS ALLAHABAD SERIES
interrupted must be sitting in any stage of
a judicial proceeding.

xxx

10.Yet
another
disturbing
feature in the present case is when the
Magistrate proposes to sentence the
accused for imprisonment or fine of
Rs.1000/- he should necessarily follow the
provisions of Section 346 Cr.P.C. In other
words, section 345 and 346 are the
relevant procedures under which an
offence under Section 228 IPC has to be
proceeded with. Section 345 Cr.P.C
contemplates that when an offence under
Section 228 IPC is committed in the
presence of any Civil, Criminal or
Revenue Court, the Court may cause the
offender to be detained in custody and
before
rising,
give
the
offender
a
reasonable opportunity of showing the
cause why he should not be punished
under this section and thereafter, sentence
the offender to a fine not exceeding
Rs.200/- and in default to fine simple
imprisonment for a term which may
extend to one month and clause (2)
specifies that in such case, the court
should record the facts constituting the
offence. Clause (3) specifically states that
the records of the Magistrate shall show
the nature and stage of the judicial
proceedings in which the court interrupted
or insulted was sitting and the nature of
the interruption or insult.

11.In my considered opinion,
345(3) Cr.P.C is totally absent in the
present case. But what is more disheartening is that the Magistrate has not
followed section 345 Cr.P.C. since it
makes clear that the sentence that could
be imposed under this section is only
Rs.200/- fine and though section 228 IPC
contemplates
imprisonment
for
six
months, the same could be done only
when the procedure mentioned in section
346 IPC is followed.

12.Section
346
Cr.P.C
contemplates that when the Magistrate
before whom such offence has been
committed feels that the punishment for
such an accused, who has committed an
offence under Section 228 should be in
excess of Rs.200/- fine, he should
necessarily after recording the facts
constituting the offence and the statement
of the accused, forward the case to a
Magistrate having jurisdiction to try the
same and it is that Magistrate who shall
proceed and deal with and try the case as
if it was instituted on a Police report."

22. In yet another case of S.
Rajanikanth Vs. Tmt. C. Thirumagal,
learned VII Metropolitan Magistrate,
George Town, Chennai-600001 (supra),
the Single Judge of Madras High Court has
considered the irregularity of proceeding
carried out under Section 345 Cr.P.C. in
paragraphs 9 and 25 the relevant extracts
are quoted herein below:-

"9. In this case, the offence was
allegedly committed on 28.01.2008. The
petitioner was not caused to be detained
and the proceedings under Section 345(1)
was not initiated on the same day. On the
other hand, it was sought to be initiated by
issuing a show cause notice on the
succeeding day, namely 29.01.2008. The
same, as rightly pointed by the learned
counsel for the petitioner, is outside the
scope of Section 345(1) Cr.P.C. Therefore
the initiation of the criminal proceedings
under Section 345(1) Cr.P.C, not on the
same day of commission of the offence but
on the succeeding day, is a material
irregularity
which
will
vitiate
the
proceedings. Once the court omits to or is
disabled from taking cognizance of the
5 All. Chandradhar Gaur Vs. State of U.P.
1875
offence on the same day, then it loses
jurisdiction to initiate the summary
proceedings under Section 345(1) Cr.P.C.
In such an event, the only alternative
available is to set the criminal law in
motion in the regular course of preferring
a complaint under the private complaint
procedure or lodging a complaint with the
police. Therefore the very initiation of the
criminal
proceedings
under
Section
345(1) Cr.P.C is against the provision and
the impugned order passed in the
proceeding thus initiated cannot be
sustained and the same is liable to be set
aside.

xxx

25. Morevoer, as pointed out
supra, the respondent seems to have
preferred
a
police
complaint
with
improved
version,
apart
from
the
proceedings initiated under Section 345(1)
Cr.P.C, as a preemptive measure because
a
representation
was
made
to
the
Registrar General of the High Court and
to the Hon'ble Chief Justice, Madras High
Court regarding the conduct of the
respondent. Had the respondent taken
little care to exhibit the conduct expected
of a judicial officer while disposing of
cases as laid down by the Supreme Court
in Chetak Constructions Limited Vs. Om
Prakash and Others, she would not have
behaved in such a manner leading to the
unfortunate consequences. In any event
the impugned order of the respondent as
VII Metropolitan Magistrate, George
Town, Chennai cannot be sustained and
the same is liable to be set aside in
exercise of the inherent powers of the
Court as the petitioner has proved bias,
and abuse of process of Court. It has
also been proved that the impugned
order was passed in violation of the
natural law principle of audi alteram
partem, which is also incorporated in
the procedure contemplated in Section
345(1) Cr.P.C. This Court is of the
considered
view
that
allowing
the
conviction
to
stay
will
result
in
miscarriage of justice and the same shall
be a sufficient reason for exercising the
inherent powers of the High Court
under Section 482 to set aside the
impugned order."

23. The above two judgements cited
by the revisionist are on the point of
requirement of compliance of procedure,
while initiating a case under Section 345
Cr.P.C. and the requirement of detention of
accused on the date of commission and the
trial gets vitiated if no detention and
issuance of show cause notice on a
subsequent day. In the present case the
invocation of Section 345 Cr.P.C. is an eye
wash as no offence is committed in view or
presence of the court but what could be
inferred is alleged disobedience of orders
of the Court. Further, Section 188 IPC is an
offence
simplicitor,
otherwise,
than
provided as an offence effecting the
administration of justice, but deals with
contempt of lawful authority of public
servant, which is required to be dealt with
in accordance to the provisions of initiation
of proceeding, provided under Section 195
Cr.P.C., which is a non-obstante clause.
Sub-Section 1(a)(i) 'provides that no court
shall take cognizance of any offence
punishable under Sections 172 to 188 IPC
(both inclusive) of Indian Penal Code',
except on complaint in writing of the public
servant or on some other public servant to
whom he is administratively subordinate.
The concerned provisions of Section 188
IPC and Section 195 Cr.P.C. are reiterated
underneath :-

"188. Disobedience to order duly
promulgated by public servant.-
1876 INDIAN LAW REPORTS ALLAHABAD SERIES

Whoever, knowing that, by an
order promulgated by a public servant
lawfully empowered to promulgate such
order, he is directed to abstain from a
certain act, or to take certain order with
certain property in his possession or under
his management, disobeys such direction,
shall, if such disobedience causes or tends
to cause obstruction, annoyance or injury,
or risk of obstruction, annoyance or
injury, to any person lawfully employed,
be punished with simple imprisonment for
a term which may extend to one month or
with fine which may extend to two
hundred rupees, or with both;and if such
disobedience causes or trends to cause
danger to human life, health or safety, or
causes or tends to cause a riot or affray,
shall be punished with imprisonment of
either description for a term which may
extend to six months, or with fine which
may extend to one thousand rupees, or
with both.

Explanation.-
It
is
not
necessary that the offender should intend
to produce harm, or contemplate his
disobedience as likely to produce harm. It
is sufficient that he knows of the order
which
he
disobeys,
and
that
his
disobedience produces, or is likely to
produce, harm."

......

"195. Prosecution for contempt
of lawful authority of public servants, for
offences against public justice and for
offences relating to documents given in
evidence.