# Daya Shankar Upadhyay v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1890
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-04
- **Case number:** Matters Under Article 227 No. 7635 of 2015
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/daya-shankar-upadhyay-v-state-of-u-p-anr-45575
- **Pages:** 7

## Headnote

(A) Code of criminal procedure, 1973 -
Summon - under Section 195(1)(a)(i) -
Prosecution
for
contempt
of
lawful
authority of public servants, for offences
against public justice and for offences
relating to documents given in evidence -
Indian Penal Code, 1860 - Section 177 IPC
- Furnishing false information - complaint
filed by a private person, under Section
195(1)(a)(i) of Cr.P.C. as well as Section
177 of IPC - bad in law - summoning
order not sustainable - quashed . (Para-12)

A complaint has been filed by a private person,
under Section 195(1)(a)(i) of Cr.P.C. for an
offence under Section 177 of IPC - learned Chief
Judicial
Magistrate,
has
summoned
the
petitioner under Section 177 IPC.
 (Para3,12)
2 All. Daya Shankar Upadhyay Vs. State of U.P. & Anr.
1891
Held:- Summoning order can be issued under
Section 195 (1)(a) (i) Cr.P.C. for an offence
under Section 177 IPC only in case complaint is
filed by a public servant and not by private
person.(Para-9)

Matters Under Article 227 allowed. (E-7)

List of cases cited:-

## Text

1890 INDIAN LAW REPORTS ALLAHABAD SERIES
tenant was not in arrears of rent for more
than four months.

21. When petitioner has validly
deposited rent in the Court under Section
30 (1) of Act, 1972, the law presumes that
such deposit amounts to payment of rent
to landlord and that being so, there was
no default on the part of petitioner.
Hence, SCC Suit itself, for ejectment of
petitioner, was not maintainable on the
ground of default in payment of rent
under Section 20 (2) (a) of Act, 1972.

22. For all the reasons aforestated, I
hold that the findings recorded by the
Courts below for arrears of rent for more
than four months as on the date of
institution of SCC Suit No. 03 of 2014, is
perverse and contrary to the documentary
evidences on record. A suit / case on the
ground mentioned in Section 20(2)(a) of
the U.P. Act No. 13 of 1972 for eviction
of a tenant from a building after the
determination of his tenancy may be
instituted if the tenant is in arrears of rent
for not less than four months, and has
failed to pay the same to the landlord
within one month from the date of service
upon him of a notice of demand. Since,
admittedly the rent was deposited upto
the month of March 2014 and the SCC
Suit No. 03 of 2014 was instituted on
7.7.2014, therefore, the petitioner - tenant
was not in arrears of rent for four months
or more as on the date of institution of
the Suit. Therefore, the suit itself was not
maintainable.

23. For all the reasons aforestated, the
impugned judgments and decree dated
5.2.2019 in SCC Suit No. 03 of 2014
passed by the Court of Civil Judge (Senior
Division),
Ballia
and
the
impugned
judgment dated 29.7.2019 in SCC Revision
No. 01 of 2019 passed by the Court of
District Judge, Ballia are hereby set aside.
The writ petition is allowed.

24. The SCC Suit No. 03 of 2014 is
dismissed. No order as to costs.
----------
(2020)02ILR A1890

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.02.2020

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 7635 of 2015
(Criminal)

Daya Shankar Upadhyay ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Brajesh Kumar Chaturvedi

Counsel for the Respondents:
A.G.A., Pramod Kumar, Sri Manoj Kumar
Dubey

(A) Code of criminal procedure, 1973 -
Summon - under Section 195(1)(a)(i) -
Prosecution
for
contempt
of
lawful
authority of public servants, for offences
against public justice and for offences
relating to documents given in evidence -
Indian Penal Code, 1860 - Section 177 IPC
- Furnishing false information - complaint
filed by a private person, under Section
195(1)(a)(i) of Cr.P.C. as well as Section
177 of IPC - bad in law - summoning
order not sustainable - quashed . (Para-12)

A complaint has been filed by a private person,
under Section 195(1)(a)(i) of Cr.P.C. for an
offence under Section 177 of IPC - learned Chief
Judicial
Magistrate,
has
summoned
the
petitioner under Section 177 IPC.
 (Para3,12)
2 All. Daya Shankar Upadhyay Vs. State of U.P. & Anr.
1891
Held:- Summoning order can be issued under
Section 195 (1)(a) (i) Cr.P.C. for an offence
under Section 177 IPC only in case complaint is
filed by a public servant and not by private
person.(Para-9)

Matters Under Article 227 allowed. (E-7)

List of cases cited:-

1. Kailash Mangal Vs. Ramesh Chand , 2015
LawSuit (SC) 251,

2. Prashant Chauhan S/O Ms Chauhan Vs. State
of Madhya Pradesh , 2014 LawSuit (MP) 199

3. Smt. Minakshi Sonkar Shastri Vs. State of
U.P. and another

(Delivered by Hon'ble Neeraj Tiwari, J.)

1.

Heard
Sri
Brajesh
Kumar
Chaturvedi,
learned
counsel
for
the
petitioner, learned AGA for the Staterespondent and Sri Pramod Kumar, learned
counsel for the respondent no.2.

2. Present petition has been filed for
quashing the whole proceedings as well as
the impugned summoning order dated
28.10.2015 passed by the learned Chief
Judicial Magistrate, Court No.17, Deoria,
in Case No. 492 of 2015 (Misc Case
No.1471 of 2010) (Prem Shankar Vs.
Shashikant), Police Station- Khukhundoo,
District- Deoria.

3. Brief facts of the case are that after
death of one Smt. Subhwanti wife of Late
Hari Shankar Dubey, Smt. Sita Devi D/o
Late Hari Shankar Dubey and respondent
no.2
both
submitted
their
separate
applications before A.D.O. Panchayat,
Deoria for recording their names as legal
heir and representatives in the Kutumb
Register.
In
pursuance
of
aforesaid
applications, A.D.O. Panchayat had called a
meeting of villagers on 27.09.2002 in
which 32 villagers including petitioner and
Gram Pradhan were given their statements
that Smt. Sita is the daughter of Late
Subhwanti and Late Hari Shankar Dubey
and no one has given statement in favour of
respondent no.2. On the basis of aforesaid
statements, the A.D.O. Panchayat has
passed an order dated 29.01.2003 in favour
of Smt. Sita. An objection was filed by the
respondent no.2 against the order dated
29.1.2003 passed by the A.D.O. Panchayat,
which was set aside by the Superior
Authority and litigation is pending between
the parties. Thereafter, respondent no.2 has
lodged an FIR dated 19.02.2005, which
was registered as Case Crime No.10 of
2005, under Section 419, 420 & 471 IPC
against the two persons, namely Shashi
Kant Pandey (A.D.O. Panchayat) and Prem
Chandra
Srivastava
(Gram
Panchayat
Adhikari). After investigation, Investigating
Officer has submitted final report on
2.7.2006.
Against
the
final
report,
respondent no. 2 has filed a protest petition
on 4.7.2007 without mentioning the name
of petitioner. The statement of respondent
no.2 was recorded under section 200
Cr.P.C., in which for the first time he
disclosed the name of petitioner. After
perusing the documentary evidence, Court
below rejected the complaint under Section
203 Cr.P.C. vide order dated 25.08.2008.
Against the said order, respondent no.2 has
filed a revision before the Revisional Court
and Revisional Court has passed an order
dated 13.8.2009 without giving opportunity
of hearing to the petitioner and remanded
the matter back to the trial Court. In
pursuance of the order dated 13.8.2019
passed by Revisional Court, the trial Court
without applying its mind summoned the
petitioner
alongwith
other
co-accused
under Section 419, 420, 467, 468 and 471
IPC vide order dated 23.11.2010. Against
1892 INDIAN LAW REPORTS ALLAHABAD SERIES
which, petitioner has approached this Court
by filing Application U/S 482 No. 13098 of
2011 in which this Court has directed the
petitioner to move discharge application
under Section 245(2) Cr.P.C. before the
Court below. In pursuance of the said order,
petitioner has moved an application under
Section 245(2) Cr.P.C. before the Court
below, which was partly allowed by setting
aside the order dated 23.11.2010 as well as
bailable warrant order dated 15.03.2011,
but learned Chief Judicial Magistrate,
Court No.17 Deoria has summoned the
petitioner under Section 177 IPC vide order
dated 28.10.2015, which is under challenge
in this petition.

4. Learned counsel for the petitioner
submitted that summoning order under Section
177 IPC can only be issued in case of filing of
written complaint by a public servant and if it
has been filed by private person, cognizance is
barred under Section 195(1)(a)(i) of Cr.P.C. He
next submitted that undisputedly the respondent
nos. 2 is a private person, therefore, on any
complaint made by him, no summoning order
can be issued for an offence under Section 177
IPC.

5. In support of his contention, he has
placed reliance upon the judgment of Apex
Court as well as this Court and Madhya
Pradesh High Court in the cases of Kailash
Mangal Vs. Ramesh Chand reported in 2015
LawSuit (SC) 251, Prashant Chauhan S/O Ms
Chauhan Vs. State of Madhya Pradesh
reported in 2014 LawSuit(MP) 199 and Smt.
Minakshi Sonkar Shastri Vs. State of U.P. and
another decided on 10th November, 2014.

6. Sri Pramod Kumar, learned counsel for
the respondent no.2 has fairly not disputed the
factual and legal positions raised by the learned
counsel for the petitioner.

7. I have considered the rival submissions
made by the learned counsel for the parties,
perused the summoning order dated 28.10.2015
as well as provisions of Section 177 of IPC &
Section 195(1)(a)(i) of Cr.P.C and judgments
relied upon.

8. Section 177 of IPC as well as Section
195(1)(a)(i) of Cr.P.C. is being quoted
hereinbelow:-

Section 177 IPC

"Furnishing false information.--
Whoever, being legally bound to furnish
information on any subject to any public
servant, as such, furnishes, as true,
information on the subject which he knows
or has reason to believe to be false, 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; or, if the information
which he is legally bound to give respects
the commission of an offence, or is required
for
the
purpose
of
preventing
the
commission of an offence, or in order to the
apprehension
of
an
offender,
with
imprisonment of either description for a
term which may extend to two years, or
with fine, or with both.

Section 195 (1)(a)(i) Cr.P.C.

"Prosecution for contempt of
lawful authority of public servants, for
offences against public justice and for
offences relating to documents given in
evidence.-
No
Court
shall
take
cognizance-

(a) (i) of any offence punishable
under Section 172 to 188 (both inclusive)
of the Indian Penal Code (45 of 1860) or..."
2 All. Daya Shankar Upadhyay Vs. State of U.P. & Anr.
1893

9. By perusal of provision of Section
177 IPC as well as Section 195(1)(a)(i) of
Cr.P.C., it is very much clear that
summoning order can be issued under
Section 195(1)(a)(i) for an offence under
Section 177 IPC only in case complaint is
filed by a public servant and in the present
case undisputedly the complaint has been
filed by opposite party no.2, who is private
person, therefore, summoning order is not
sustainable. Further judgment of Apex
Court in the case of Kailash Mangal
(supra) has taken the same view. Relevant
paragraph no.8 of judgment of Kailash
Mangal
(supra)
is
being
quoted
hereinbelow:-

"8. We may usefully refer to the
judgment of this court reported in the case
of C. Muniappan in which case the scope of
Section 195(1)(a)(i) of the Code of
Criminal Procedure was discussed at
length. Relevant para Nos. 28 to 33 are
extracted hereunder:

"28. Section 195(1)(a)(i) Cr.PC
bars the court from taking cognizance of
any offence punishable under Section 188
IPC or abetment or attempt to commit the
same, unless, there is a written complaint
by the public servant concerned for
contempt of his lawful order. The object of
this provision is to provide for a particular
procedure in a case of contempt of the
lawful authority of the public servant. The
court lacks competence to take cognizance
in certain types of offences enumerated
therein. The legislative intent behind such a
provision has been that an individual
should not face criminal prosecution
instituted upon insufficient grounds by
persons actuated by malice, ill-will or
frivolity of disposition and to save the time
of the criminal courts being wasted by
endless. This provision has been carved out
as an exception to the general rule
contained under Section 190 Cr.PC that
any person can set the law in motion by
making a complaint, as it prohibits the
court from taking cognizance of certain
offences until and unless a complaint has
been made by some particular authority or
person. Other provisions in the Cr.P.C. like
sections 196 and 198 do not lay down any
rule of procedure, rather, they only create a
bar that unless some requirements are
complied with, the court shall not take
cognizance of an offence described in those
Sections. (vide Govind Mehta v. The State
of Bihar, 1971 3 SCC 329; Patel Laljibhai
Somabhai v. The State of Gujarat, 1971 2
SCC 376; Surjit Singh & Ors. v. Balbir
Singh, (1996) 3 SCC 533; State of Punjab
v. Raj Singh & Anr., (1998) 2 SCC 391; 2 K
Vengadachalam v. K.C. Palanisamy 7 Ors.,
(2005) 7 SCC 352; and Iqbal Singh
Marwah & Anr. v. Meenakshi Marwah &
Anr., AIR 2005 SC 370).

29. The test of whether there is
evasion or non- compliance of Section 195
Cr.PC or not, is whether the facts disclose
primarily and essentially an offence for
which a complaint of the court or of a
public servant is required. In Basir-ul-Haq
& Ors. v. The State of West Bengal, AIR
1953 SC 293; and Durgacharan Naik &
Ors. v. State of Orissa, AIR 1966 SC 1775,
this Court held that the provisions of this
Section cannot be evaded by describing the
offence as one being punishable under
some other sections of IPC, though in truth
and substance, the offence falls in a
category mentioned in Section 195 Cr.PC.
Thus, cognizance of such an offence cannot
be taken by mis-describing it or by putting
a wrong label on it.

30. In M.S. Ahlawat v. State of
Haryana & Anr., AIR 2000 SC 168, this
1894 INDIAN LAW REPORTS ALLAHABAD SERIES
Court considered the matter at length and
held as under :

"....Provisions of Section 195
CrPC are mandatory and no court has
jurisdiction to take cognizance of any of the
offences mentioned therein unless there is a
complaint in writing as required under that
section."

31. In Sachida Nand Singh & Anr.
State of Bihar 7 Anr., (1998) 2 SCC 493,
this Court while dealing with this issue
observed as under :

"7..... Section 190 of the Code
empowers "any magistrate of the first
class" to take cognizance of "any offence"
upon receiving a complaint, or police
report or information or upon his own
knowledge. Section 195 restricts such
general powers of the magistrate, and the
general right of a person to move the court
with a complaint to that extent curtailed. It
is a well-recognised canon of interpretation
that
provision
curbing
the
general
jurisdiction of the court must normally
receive strict interpretation unless the
statute or the context requires otherwise."

32. In Daulat Ram v. State of
Punjab, AIR 1962 SC 1206, this Court
considered the nature of the provisions of
Section 195 Cr.PC. In the said case,
cognizance had been taken on the police
report by the Magistrate and the appellant
therein had been tried and convicted,
though the concerned public servant, the
Tahsildar had not filed any complaint. This
Court held as under :

"4....The cognizance of the case
was therefore wrongly assumed by the
court without the complaint in writing of
the public servant, namely, the Tahsildar in
this case. The trial was thus without
jurisdiction ab initio and the conviction
cannot be maintained.

5....The
appeal
is,
therefore,
allowed and the conviction of the appellant
and the sentence passed on him are set
aside."

33. Thus, in view of the above, the
law can be summarized to the effect that
there must be a complaint by the pubic
servant whose lawful order has not been
complied with. The complaint must be in
writing. The provisions of Section 195
Cr.PC are mandatory. Non-compliance of it
would vitiate the prosecution and all other
consequential orders. The Court cannot
assume the cognizance of the case without
such complaint. In the absence of such a
complaint, the trial and conviction will be
void ab initio being without jurisdiction."

Applying the above decision, the
conviction of the Appellant under Section
193 and 419 of the Indian Penal Code is
not sustainable."

10. Again in the matter of Minakshi
Sonkar
Shastri
(Supra),
this
Court
reiterated the same ratio of law. Relevant
paragraphs 5 to 7 of the said judgment are
quoted hereinbelow:-

"5. Section 182 I.P.C. provides
that whoever gives to any public servant
any information which he knows or
believes to be false, intending thereby to
cause, or knowing it to be likely that he will
thereby cause, such public servant - (a) to
do or omit anything which such public
servant ought not to do or omit if the true
state of facts respecting which such
information is given were known to him, or
(b) to use the lawful power of such public
servant to the injury or annoyance of any
person, shall be punished.
2 All. Daya Shankar Upadhyay Vs. State of U.P. & Anr.
1895

6. Section 195 (1) (a) (i) Cr.P.C.
provides
that
no
Court
shall
take
cognizance of any offence punishable under
Section 172 to 188 (both inclusive) of the
Indian Penal Code or abetment of or
attempt to commit such offence or of any
criminal conspiracy to commit such offence
except on a complaint in writing by the
public servant concerned or of some other
public
servant
to
whom
he
is
administratively subordinate.

7. The cumulative reading of the
aforesaid provisions is that a criminal
complaint under Section 182 I.P.C. is
maintainable only at the instance of a
public servant and not a private person.
Admittedly, opposite party no. 2 is a private
person. If that be so, criminal complaint
filed by him under Section 182 I.P.C. was
completely barred and the Court was
precluded from taking cognizance in view
of the specific embargo under Section 195
(1) (a) (i) of the Code. Once a criminal
complaint itself was not maintainable, this
Court could not relegate the revisionist to
claim a discharge."

11. Madhya Pradesh High Court has
also taken the same view in the case of
Prashant Chauhan (Supra) . Paragraphs
11 to 13 of the said judgment are quoted
hereinbelow:-

"11. There is no dispute that
petitioner has been subjected to prosecution for
the alleged commission of offence punishable
under Section 188 of IPC. It is also not in
dispute that the allegation against the petitioner
is that he has disobeyed the order/instructions
issued by District Magistrate, Gwalior in
relation to availability of books, uniform and
stationaries at eight shops and providing the list
of books as per syllabus and sellers to the
Additional
District
Magistrate/District
Education Officer prior to starting of academic
session. Section 195 of the Code contains
general provisions with regard to taking
cognizance of offence by the Magistrate,
however in respect of certain offences, special
provisions have been made prescribing the
manner in which, and the circumstances, in
which, the cognizance could be taken by the
Court. Section 195(1) provides that no Court
shall take cognizance of certain offences
enumerated in clauses (a) and (b), except in the
manner provided therein. The provisions
contained in subsection (1) are mandatory in
nature and are not directory. The statutory
mandate prohibits taking of cognizance except
in the manner provided therein.

12. So far as commission of offence
under Section 188 of IPC is concerned, the
provisions contained in clause (a) are
applicable which mandate that no Court shall
take cognizance of the offence punishable under
Section 188 of IPC, except on the complaint in
writing of the public servant concerned or some
other
public
servant
to
whom he
is
administratively subordinate. Thus, the Court is
prohibited from taking cognizance of the
offence punishable under Section 188 of IPC
except when the complaint in writing is made
by the concerned public servant. The statutory
scheme
with
regard
to
cognizance
of
commission of offence under Section 188 of
IPC is that complaint has to be filed before the
Magistrate
concerned
having
territorial
jurisdiction either by the concerned public
servant, whose order is alleged to have been
disobeyed or by any other public servant to
whom, the concerned public servant is
administratively subordinate.

13. This being so, the aforesaid
discussion makes it clear that for the
offence under Section 188 of IPC without
complaint filed directly to the Magistrate,
Court cannot take cognizance, therefore, on
1896 INDIAN LAW REPORTS ALLAHABAD SERIES
police report the trial Court was not
obliged to take cognizance of the offence.

12. Therefore, under such facts and
circumstances, once there is no dispute that
complaint is filed by a private person,
under Section 195(1)(a)(i) of Cr.P.C. as
well as Section 177 of IPC and law laid
down by the Apex Court as well as
different High Courts, summoning order
dated
28.10.2015
as
well
as
entire
proceedings so far as against the petitioner
is concerned, is bad in law and hereby
quashed.

13. Accordingly, the petition is
allowed. No order as to costs.
----------