# Ramendra Sharma & Ors v. State of U.P. & Anr

- **Citation:** (2022) 5 ILRA 1502
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-27
- **Case number:** Application U/S 482 No. 18403 of 2021
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramendra-sharma-ors-v-state-of-u-p-anr-48438
- **Pages:** 5

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 195 - FIR
lodged by Sub-Inspector-chargesheet filedcognizance taken by Trial Court-for offence
u/s 174-A IPC-in absence of any complaint
in
writing
by
officer
concerned-Circle
Officer-C.O.
is
subordinate
to
SPSuperintendent of Police (SP) not filed any
complaint as required u/s 195 Cr.P.C.-
Proceeding initiated in pursuance of F.I.R.
lodged by Sub Inspector-who is not the
investigating Officer-order of Trial Court
without
jurisdiction
abinitio-proceeding
quashed.

Application allowed. (E-9)

List of Cases cited:

## Text

1502 INDIAN LAW REPORTS ALLAHABAD SERIES
that it may be possible that the result of the
rapid antigen COVID Test report and the
RT-PCR report may vary. It is further
submitted that the above-noted variations in
the two report cannot be termed as 'grossnegligence' on the part of the doctors
concerned.

7.

I
have
given
thoughtful
consideration to the submissions advanced
by the learned counsel for the parties and
gone through the material available on
record.

8. Hon'ble Apex Court in Jacob
Mathew (supra) has held that:-

"To
prosecute
the
medical
professionals for negligence under criminal
law, something more than mere negligence
had to be proved. Medical professionals
should not be dragged into criminal
proceedings unless negligence of a high
order is shown. "

9. Hon'ble Apex Court has reiterated
the above-noted proposition of law in the
latest judgement passed in Civil Appeal
No.6507 of 2009 (Dr. Mrs. Chanda Rani
Akhouri
&
Ors.
v.
Dr.
M.A.
Methusethupathi & Ors.).

10. Moreover, there is no independent
expert report to establish that there was
'gross-negligence' on the part of opposite
party nos.2 and 3. There is possibility that
the rapid antigen COVID Test report and
the RT-PCR report may vary and that
cannot be termed as the 'gross negligence'
on the part of opposite party nos.2 and 3.

11. In view of the above, the instant
application under Section 482 Cr.P.C. is
devoid of merit and is, accordingly,
dismissed.
----------
(2022)05ILR A1502
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.04.2022

BEFORE

THE HON'BLE MANISH KUMAR, J.

Application U/S 482 No. 18403 of 2021

Ramendra Sharma & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Mohit Singh

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 195 - FIR
lodged by Sub-Inspector-chargesheet filedcognizance taken by Trial Court-for offence
u/s 174-A IPC-in absence of any complaint
in
writing
by
officer
concerned-Circle
Officer-C.O.
is
subordinate
to
SPSuperintendent of Police (SP) not filed any
complaint as required u/s 195 Cr.P.C.-
Proceeding initiated in pursuance of F.I.R.
lodged by Sub Inspector-who is not the
investigating Officer-order of Trial Court
without
jurisdiction
abinitio-proceeding
quashed.

Application allowed. (E-9)

List of Cases cited:

1. Daulat Ram Vs St. of Pun., 1962 Supp (2)
SCR 812 : A.I.R. 1962 SC 1206.

2. Yogeshwar Sood & anr. Vs St. of U.P. &
ors. Criminal Misc. Writ Petition No.12772 of
2020
5 All. Ramendra Sharma & Ors. Vs. State of U.P. & Anr.
1503
3. Daulat Ram Vs St. of Pun. reprted in 1962
Supp(2) SCR 812; AIR 1962 SC 1206; (1962)2
Crl LJ 286

(Delivered by Hon'ble Manish Kumar, J.)

 1. Heard learned counsel for the
parties and perused the record.

 2. The present petition under Section
482 Cr.P.C. has been filed with the prayer
to allow this application and quash the
entire proceedings of Case No.179/2021,
arising out of Case Crime No.0312/2020,
under section 174-A IPC, P.S. Behjoi,
District - Sambhal, pending before the
court of learned Chief Judicial Magistrate,
Sambhal at Chandausi, to quash the
impugned charge sheet dated 01.09.2020
submitted in the aforesaid case and also to
quash the impugned cognizance order dated
11.01.2021 passed by the learned Chief
Judicial Magistrate, Sambhal at Chandausi.
It has further been prayed to stay the entire
proceedings of the aforesaid case.

 3. The brief facts of the case are that
an F.I.R. being Case Crime No.192 of 2020
dated 19.05.2020 has been lodged against
the applicants under Section 34, 120-B,
504, 302, 149, 148, 147 I.P.C. and Section
3(2)(V) SC/ST Act, 1985. In the said case,
despite
the
non-bailable
warrant
the
applicants had not appeared before court
then the order of proclamation under
Section 82 Cr.P.C. was passed and
thereafter, the applicants surrendered before
the court below as stated in Para 18 to the
application / present petition, which has not
been disputed in Para 16 of the counter
affidavit filed on behalf of State. After the
applicants enlarged on bail. On 09.07.2020
an F.I.R. has been lodged by the SubInspector against the applicants under
Section 174-A IPC Case Crime No.0312 of
2020 has been registered in which after
filing of chargesheet dated 1.9.2020 the
cognizance order dated 11.01.2021 has
been
passed
by
the
Chief
Judicial
Magistrate,
Sambhal,
Chandausi.
The
present
petition/application
has
been
preferred
feeling
aggrieved
by
the
chargesheet
dated
1.9.2020
and
the
cognizance order dated 11.01.2021 passed
by the Chief Judicial Magistrate.

 4. Learned counsel for the applicants
has submitted that at no point of time,
neither any summon, bailable warrant and
non-bailable warrant were ever served upon
the applicants nor there is any evidence
during the investigation on the record
regarding the service or refusal to accept
the service or the applicants were not
present at the address given before the
court, same has specifically been pleaded in
Para 28 of the application / petition, which
has not been either denied or disputed by
the state in Para 18 of the counter affidavit.

 5. It is further submitted that as per
Section 195 Cr.P.C., the lodging of an F.I.R.
for Section 174 (A) IPC is not maintainable
as per the procedure provided in Cr.P.C., if
any proceeding is to be initiated i.e. by
filing a complaint in writing either by the
public servant concerned, or some other
public
servant
to
whom
he
is
administratively subordinate. It is further
submitted that in the present case public
servant concerned means the Investigating
Officer or the officer under whom that
Investigating Officer is administratively
subordinate. In the case of the applicants
the investigating officer was the Circle
Officer but the F.I.R. was lodged by the
Sub-Inspector.
In
support
of
his
submission,
learned
counsel
for
the
applicants has relied upon the judgement
and order of this Court dated 20.11.2020
1504 INDIAN LAW REPORTS ALLAHABAD SERIES
passed in Criminal Misc. Writ Petition
No.12772 of 2020 (Yogenshwar Sood And
Another vs State of U.P. and 2 others) and
the judgement of Hon'ble the Apex Court
in the case of Daulat Ram vs. State of
Punjab, 1962 Supp (2) SCR 812 : A.I.R.
1962 SC 1206.
 6. Learned counsel for the applicant
has further submitted that the order under
Section 82(4) Cr.P.C. was passed on
12.06.2020 and the specific date for
appearance of the appellant fixed was
16.07.2020, whereas prior to that date the
F.I.R. was lodged on 9.7.2020 which shows
the malicious action on the part of the
complainant that without waiting the
specified date, he proceeded against the
applicants.

 7. On the other hand, learned A.G.A.
has submitted that the applicants had not
appeared despite the non-bailable warrants
were issued against them. The applicants
appeared only after passing proclamation
under Section 82 Cr.P.C. It is further
submitted
that
Section
174-A
I.P.C.
provides initiation of proceeding and
punishment against the persons who avoid
the summons of the court, hence there is no
illegality in the proceedings initiated
against the applicants, but unable to dispute
the submissions raised by the learned
counsel
for
the
applicants
and
the
judgement relied upon.

 8. After hearing learned counsel for
the parties and going through the record and
the judgements relied, it is found that
Section 174 A I.P.C. provides that initiation
of proceedings and punishment against the
person, whoever fails to appear at the
specified place and the specified time in
response to the proclamation issued under
Section 82 Cr.P.C., for the convenience
Section 174-A I.P.C. is quoted hereinbelow:
 "[174A.
Non-appearance
in
response to a proclamation under section 82
of Act 2 of 1974.?Whoever fails to appear at
the specified place and the specified time as
required by a proclamation published under
sub?section (1) of section 82 of the Code of
Criminal Procedure, 1973 shall be punished
with imprisonment for a term which may
extend to three years or with fine or with
both, and where a declaration has been
made under sub?section (4) of that section
pronouncing him as a proclaimed offender,
he shall be punished with imprisonment for
a term which may extend to seven years and
shall also be liable to fine.]."

 9. From perusal of the above
mentioned provision, it is clear that if a
person fails to appear on a specified place
and the specified time as required by the
proclamation published under Section 82 of
the Code of Criminal Procedure, 1973, the
proceedings under Section 174-A I.P.C. shall
be
initiated
wherein
the
punishment
provided is with imprisonment for a term
which may extend to three years or with fine
or with both, and where a declaration has
been made under sub-section (4) of that
section, the persons shall be punished with
imprisonment for a term which may extend
to seven years and shall also be liable to
fine.

 10. In the present case, it is not
disputed
that
the
applicants
had
surrendered after the proclamation order
was passed under Section 82 Cr.P.C., but
not on the specified place and time as
mentioned in the proclamation but the
submission of the learned counsel for the
applicant
is
that
for
initiating
a
proceeding under Section 174-A I.P.C.
the procedure is provided under Section
195 Cr.P.C., for convenience the relevant
extract of Section 195 is quoted below:
5 All. Ramendra Sharma & Ors. Vs. State of U.P. & Anr.
1505
 "195. Prosecution for contempt of
lawful authority of public servants, for
offences against public justice and for
offences relating to documents given in
evidence.
(1) No Court shall take cognizance-
(a) (i) of any offence punishable under
sections 172 to 188 (both inclusive) of the
Indian Penal Code (45 of 1860 ), or
(ii) of any abetment of, or attempt to
commit, such offence, or
(iii) of any criminal conspiracy to commit
such offence, except on the complaint in
writing of the public servant concerned or
of some other public servant to whom he is
administratively subordinate;

 11. From perusal of the provisions,
wherein it has been provided that no court
shall take cognizance of any offence
punishable under Section 172 to 188 I.P.C.
except a complaint made by public servant
concerned or some other public servant to
whom is administrative subordinate and in
the present case concerned public servant is
the officer who had investigated the matter
and in the present case the circle officer
was the investigating officer and he was
under the administrative subordinate of
Superintendent of Police but neither any
complaint in writing was filed by the circle
officer or some other public servant to
whom
the
Investigating
Officer
is
administrative subordinate.

12. In the judgement / order dated
20.11.2020 passed by this Court in
Criminal Misc. Writ Petition No.12772 of
2020 (Yogeshwar Sood And Another vs.
State of U.P. & 2 others) where the F.I.R.
was challenged on the same ground and the
Hon'ble Court has quashed the F.I.R. on the
ground that as per provision contained in
Section 195(1) in the Code of Criminal
Procedure, 1973, there is a specific bar for
taking
cognizance
of
any
offence
punishable under Section 172 to 188 of the
I.P.C. and quashed the F.I.R. with an
undertaking of the petitioners that they will
appear before the concerned Magistrate /
Court.
The
relevant
extract
of
the
judgement is quoted hereinbelow:-

 "After hearing counsel for
the parties and going through the record, it
is apparent that Section 174-A deals with
non-appearance and in case of issuance of
a proclamation under section 82 of the Act2 of 1974. As per provisions contained in
Section 195(1) in the Code of Criminal
Procedure, 1973 there is a specific bar
from taking cognizance of any offence
punishable under section 172 to 188 (both
inclusive) of the IPC. Thus registration of
FIR against petitioners under section 174A, prima facie appears to be abuse of the
process. However, in the writ jurisdiction
we have to also balance equities. "

 13. Learned counsel for the applicant
has also relied upon judgement passed in
the case of Daulat Ram vs. State of Punja
reprted in 1962 Supp(2) SCR 812; AIR
1962 SC 1206; (1962)2 Crl LJ 286, the
relevant para is quoted hereinbelow:

 "4. Now the offence under s. 182 of
the Penal Code, if any, was undoubtedly
complete when the appellant had moved the
Tehsildar for action. 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. In making his report to the Tehsildar
therefore, if the appellant believed that
some action would be taken (and he had no
reason to doubt that it would not) the
offence under that section was complete. It
was therefore incumbent, if the prosecution
was to be launched, that the complaint in
1506 INDIAN LAW REPORTS ALLAHABAD SERIES
writing should be made by the Tehsildar as
the public servant concerned in this case.
On the other hand what we find is that a
complaint by the Tehsildar was not filed at
all, but a charge sheet was put in by the
Station House Officer. The learned counsel
for the State Government tries to support
the action by submitting that s. 195 had
been complied with inasmuch as when the
allegations had been disproved, the letter of
the Superintendent of Police was forwarded
to the Tehsildar and he asked for "a
calendar". This paper was flied along with
the charge sheet and it is stated that this
satisfies the requirements of s. 195. In our
opinion, this is not a due compliance with
the provisions of that section. What the
section comtemplates is that the complaint
must be in writing by the public servant
concerned and there is no such compliance
in the present case. The cognizance of the
case was therefore wrongly assumed by the
court without the complaint in writing of
the public servant namely the Tehsildar in
this case. The trial was thus without
jurisdiction ab inito and the conviction
cannot be maintained. "

 14. From the above mentioned
judgement, wherein the Hon'ble Apex
Court has held that the Tehsildar was
investigating the matter and the chargesheet
was filed by the Station House Officer,
whereas the competent public servant was
the Tehsildar and he has not submitted any
written complaint, hence, the cognizance of
the case was therefore wrongly assumed by
the court and the trial was thus without
jurisdiction ab initio and the conviction
cannot be maintained.

 15. In the present case also in
pursuance of the F.I.R. lodged by the SubInspector, the chargesheet was filed and the
cognizance has been taken by the trial
Court for an offence under Section 174-A
I.P.C. in absence of any complaint in
writing by the officern concerned. In the
present case the officer concerned is the
Investigating Officer i.e. the Circle Officer
or the officer/ the public servant under
whom he is administratively subordinate.
In the present case the Circle Officer who is
under administrative Sub-ordinate of the
Superintendent
of
Police,
so
the
Superintendent of Police has also not filed
any complaint as required under Section
195 Cr.P.C. The proceedings were initiated
in pursuance of an F.I.R. lodged by Sub
Inspector, who was not the investigating
officer and hence the order of the trial
Court is without jurisdiction ab initio and
the proceeding is liable to be quashed.

 16. As per the discussion made
hereinabove, the proceeding of Case
No.179/2021, arising out of Case Crime
No.0312/2020, under section 174-A IPC,
P.S. Behjoi, District - Sambhal is quashed.

 17. The present petition/ application
is allowed.
----------

(2022)05ILR A1506
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.03.2022

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Application U/s 482 No. 16864 of 2021

Krishna Kant Pachauri & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Shashi Shekhar Mishra, Sri A.K. Mishra,
Sri Upendra Kumar Tiwari