# Smt. Saroj Mishra v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1494
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-09
- **Case number:** Application U/S 482 No. 15919 of 2013
- **Bench:** Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-saroj-mishra-v-state-of-u-p-anr-45182
- **Pages:** 14

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 195- There is
specific bar for a Court to take cognizance for
any offence punishable under Sections 172 to
188 Cr.P.C. (both inclusive) as per provision
quoted u/s 195 (a) (i) Cr.P.C.

B. Criminal law - Indian Penal Code, 1860
- Section 340- section 419, 420, 468, 471,
177, 181 IPC.- The false testimony of an
imposter before the Court would be covered in
the category of offence under Sections 177 and
181 I.P.C. and the bar of Section 195 Cr.P.C.
would be operational .

C. Criminal law - Code of Criminal
Procedure, 1973 - Section 340-Only court
had the jurisdiction to lodge a complaint after
enquiry having been held under Section 340
Cr.P.C. which process does not appear to have
been resorted to in the present case- No
private complainant can be allowed to initiate
any Criminal proceeding in his individual
capacity - No court can take cognizance of the
offences punishable under Section 172 to 188
I.P.C. except on written complaint by the public
servant concerned-Even if the other sections
419, 420, 408 and 471 I.P.C. are found to be
2 All. Smt. Saroj Mishra Vs. State of U.P. & Anr.
1495
made out despite their being not mentioned in
Section 195 Cr.P.C., it cannot be held that the
proceedings in the present case would not
stand barred under Section 195 Cr.P.C. as the
offences under the said sections appear to be
connected and to have been committed in
course of the same offence i.e. under Sections
177 and 188 I.P.C.-Entire criminal proceedings
quashed. ( Para 8,9,13,14,19,21)

Application u/s 482 Cr.Pc disposed of.

Case law discussed:-

## Text

_Characters 0–39,889 of 48,204. This is a partial read: ask again with offset=39889 for what follows._

1494 INDIAN LAW REPORTS ALLAHABAD SERIES
charges against them were framed in only
Section 147, 148, 324/149, 308/149 IPC.
Charge against the applicant was also
framed under the above sections of Indian
Penal Code. In Thakur Ram vs. State of
Bihar AIR 1966 SC 911, it has been
observed by Hon'ble Apex Court that
Section 300 Cr.P.C. bars the trial of a
person again not only for the same offence
but also for any other offence on the same
facts Inguva Mallikarjun Vs. State of
A.P. 1978 Cr.LJ 392 (DB), it was
observed that Section 300 Cr.P.C. also
applies to offence for which charges might
have been framed at previous trial.

14. It is not disputed by the
learned AGA that previous offence was
tried by a competent court in which
applicant was acquitted. This fact is
also stated in the counter affidavit of
the State. Third necessary point to
apply the bar of Section 300 Cr.P.C. is
such acquittal or conviction is in force.
Learned counsel for the applicant
submitted that the acquittal order dated
25.11.2005 is still in force. Learned
AGA has not disputed this fact.

15. In view of the above facts and
discussion, second trial of the applicant
for the same offence in which he has
been acquitted is barred by Section 300
Cr.P.C.

16.

Consequently,
entire
proceedings of Criminal Case No.1048
of 2005 arising from Case Crime No.99
of 2002, under Section 147, 148, 323,
504, 325, 308, 324 IPC against the
applicant is hereby quashed.

17. This application u/s 482 Cr.P.C.
is, accordingly, allowed.
----------
(2020)02ILR A1494

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.09.2019

BEFORE
THE HON'BLE DINESH KUMAR SINGH-I, J.

Application U/S 482 No. 15919 of 2013
connected with
 Application U/S 482 No. 11756 of 2013

Smt. Saroj Mishra ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Ms. Amrita Mishra

Counsel for the Opposite Parties:
A.G.A., Sri Firoz Haider

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 195- There is
specific bar for a Court to take cognizance for
any offence punishable under Sections 172 to
188 Cr.P.C. (both inclusive) as per provision
quoted u/s 195 (a) (i) Cr.P.C.

B. Criminal law - Indian Penal Code, 1860
- Section 340- section 419, 420, 468, 471,
177, 181 IPC.- The false testimony of an
imposter before the Court would be covered in
the category of offence under Sections 177 and
181 I.P.C. and the bar of Section 195 Cr.P.C.
would be operational .

C. Criminal law - Code of Criminal
Procedure, 1973 - Section 340-Only court
had the jurisdiction to lodge a complaint after
enquiry having been held under Section 340
Cr.P.C. which process does not appear to have
been resorted to in the present case- No
private complainant can be allowed to initiate
any Criminal proceeding in his individual
capacity - No court can take cognizance of the
offences punishable under Section 172 to 188
I.P.C. except on written complaint by the public
servant concerned-Even if the other sections
419, 420, 408 and 471 I.P.C. are found to be
2 All. Smt. Saroj Mishra Vs. State of U.P. & Anr.
1495
made out despite their being not mentioned in
Section 195 Cr.P.C., it cannot be held that the
proceedings in the present case would not
stand barred under Section 195 Cr.P.C. as the
offences under the said sections appear to be
connected and to have been committed in
course of the same offence i.e. under Sections
177 and 188 I.P.C.-Entire criminal proceedings
quashed. ( Para 8,9,13,14,19,21)

Application u/s 482 Cr.Pc disposed of.

Case law discussed:-

1. St. of U.P. Vs. Mata Bhik & ors. (1994) 4 SCC
95
2. Abdul Rehman & anr Vs. K.M. Anees-Ul-Haq
2011 (10) SCC 696

3. Soni Dinesh Kumar Dahyalal Vs. St. of Guj.
Crl. Misc. Appl. No. 17270 of 2012

4. Govardhan Kumar Thakoredas Vs. St. of Guj.
in Crl. Misc. Application No. 24632 of 2015
decided on 13.04.2017

(Delivered by Hon'ble Dinesh Kumar
Singh-I, J.)

1. Heard Ms. Amrita Mishra, learned
counsel for the applicant and Sri G.P.
Singh, learned A.G.A. appearing for the
State.

2. These applications have been
moved for quashing of the order dated
2.1.2013 passed by the Additional Chief
Judicial Magistrate, Court No. 2, Budaun
in Criminal Case No. 3 of 2013 (State vs.
Satyaveer and others) arising out of case
crime no. 592 of 2012 under section 419,
420, 468, 471, 177, 181 IPC, P.S. Faizganj
Behta District Budaun.

3. The case as mentioned in the FIR is
that the opposite party no. 2 Kishori Lal
came to know on 10.4.2012 about the case
of Smt. Saroj Mishra (accused-applicant))
where-after he tried to find out about the
same and came to know that Satyaveer
(accused-applicant),
Saroj
Mishra
(accused-applicant) and Mahendra had
committed forgery in several papers in
collusion with each other and had made
the opposite party no. 2 an accused in a
false case, because in the complaint and
the statement under section 200 Cr.P.C.,
the occurrence is shown to have taken
place on 27.7.2011 by Mahendra while
Mahendra son of Saligram was detained in
jail from 19.7.2011 to 28.7.2011 in case
crime no. 664 of 2011 and hence how
could he have seen the occurrence as he
was detained in prison which was at a
distance of 50 km. Either he gave false
statement or some other person would
have been sent to jail by forged name of
the said accused. The opposite party no. 2
annexed documentary evidence relating to
case no. 1226 of 2011 pertaining to Case
Crime No.664 of 2011 and mentioned in
the said written report that all the accused
named-above had committed forgery in
various documents by which they had
misled the court as well as the police and
gave false statement. It is also mentioned
in the written application moved under
section 156 (3) Cr.P.C. that concerning this
occurrence, on 28.4.2012, an application
was given to the police to register the case
against the accused person but no action
was taken.

4. On the said application the
present case crime no. 592 of 2012
appears to have been registered under
section 419, 420, 468, 471 IPC at P.S.
Faizganj Behta, District Buadaun on
7.11.2012 at 6.10 A.M. and after
investigation
by
the
Investigating
Officer, charge-sheet has been submitted
against the Satyaveer, Smt. Saroj Mishra
(applicant)
and
Mahendrapal
under
1496 INDIAN LAW REPORTS ALLAHABAD SERIES
section 419, 420, 468, 471, 177 and 181
IPC.

5. Contention of the learned counsel
for the applicant is that on 25.8.2011 the
applicant had filed a complaint before the
CJM, Budaun against the opposite party
no. 2 under sections 323, 504, 506, 427
IPC which was registered as a Complaint
Case No. 1226 of 2011 which is at page-52
as Annexure-9 stating therein that on
27.7.2011 at about 8.00 A.M. when she
was going to attend her duty as Aganbari
Karyakarti, near Devi temple the accused
persons namely Yad Ram @ Santosh, Raja
Ram and Kishori Lal came in her way
armed with illegal weapon and demanded
Rs.10,000/- as illegal gratification giving
threats to face dire consequence in case the
same was not given. They also used
abusive language against her. In the said
case statement of applicant was recorded
before Magistrate on 25.8.2011 under
section 200 Cr.P.C. and that of witness
Satyaveer under section 202 Cr.P.C as
PW2 on 5.12.2011. In her statement, the
applicant had fully corroborated the
allegation
made
in
the
complaint.
However, it was made clear by the
applicant that no other witness was present
at the time of incident on the spot.
Statement of Mahendrapal was also
recorded under section 202 Cr.P.C as PW1
on 3.11.2011, in which he also stated that
along with other persons, Mahendrapal too
was present there. After considering the
entire
evidence,
learned
Magistrate
summoned the opposite party no.2 and two
others in the said complaint case no. 1226
of 2011 to face trial under section 323,
504, 506, 429 IPC. On 7.11.2012 opposite
party no.. 2 lodged an FIR at P.S. Faizganj
Behta of the present case against the
applicant Saroj Mishra, Satyaveer and
Mahendrapal by moving application under
section 156 (3) Cr.P.C. alleging that after
summoning order in the Complaint Case
No.1226 of 2011, she verified the record
and found that the statement made by
Mahendrpal was not possible to have been
made because he was in jail since
19.7.2011 to 28.7.2011 in relation to case
crime no. 664 of 2011 while the
complainant of complaint case no. 1226 of
2011 had shown Mahendrapal to be
present at the time of occurrence of the
said case. The police without making
proper investigation, filed charge-sheet on
28.11.2012 against the applicant Saroj
Mishra and Mahendnrapal in case crime
no. 592 of 2012 under section 419, 420,
468, 471, 177 and 181 IPC, on which
ACJM, Court no. 2, Budaun has taken
cognizance on 2.1.2013 and has issued
summons to the applicant and others to
appear before it on 28.2.2013 without
applying his judicious mind. The entire
charge-sheet as well as order dated
2.1.2013 in pursuance thereof, is ex-facie
illegal because cognizance taken by the
Magistrate is barred under section 195 of
Cr.P.C. Even if Mahendrapal has given
false statement, the remedy is available to
opposite party no. 2 to move application
under section 340 Cr.P.C before the court
concerned. Even from the perusal of the
FIR, no case is made out under the abovementioned sections and whole proceedings
have been initiated only to harass the
applicant because opposite party no. 2 had
been summoned in complaint case no.
1226 of 2011 and therefore, the present
proceedings is nothing but a counter-blast
initiated by malafide intention and ulterior
motive, which were liable to be quashed.
The co-accused Satyaveer had filed an
application u/s 482 No.11756 of 2013
which was disposed of by this Court
directing that no coercive action shall be
taken against him, copy of which is
2 All. Smt. Saroj Mishra Vs. State of U.P. & Anr.
1497
annexed, therefore, it is prayed that the
summoning order dated 2.1.2013 passed
by ACJM, Court No. 2 Budaun should be
quashed. Reliance has been placed on
behalf of the applicant in the case of State
of U.P. vs. Mata Bhik and others (1994)
4 SCC 95. In this case it is held by Apex
Court that the court is barred from taking
cognizance of offence under section 195
(1) (a) except on a written complaint by
public
servant
concerned.
Private
complaint
is
not
maintainable.
The
successor in the office of the public
servant concerned in law is eligible to file
a complaint against wrongdoers .

6. On behalf of opposite party no. 2
by filing counter affidavit it is submitted
that the summoning order dated 2.1.2013
is absolutely legal. It is wrong to say that
Mahendrapal son of Saligram named as
witness, was in jail since 19.7.2011 to
28.7.2011 in case Crime No.664 of 2011.
It was evident from FIR that the
complainant lodged the same wherein he
has mentioned that Mahendrapal son of
Saligram was detained in jail from
19.7.2011 to 28.7.2011 in case crime no.
664 of 2011, the deponent was deliberately
giving false evidence just to obtain
favourable order in his favour. It is further
mentioned that the applicant Saroj Mishra
has
filed
frivolous
and
concocted
complaint before the CJM, misrepresented
and committed fraud. She has alleged that
the incident had occurred on 27.7.2011 at
about 8.00 A.M. in the morning when she
was going to attend official duty as
Aganbari Kariyakarti. It is evident on
record that Mahendrapal son of Saligram
was detained in jail on 27.7.2011 and was
released on 28.7.2011 which belies the
story of the applicant. Statement recorded
under section 200 Cr.P.C of Saroj Devi on
25.8.2011,
in
that
she
has
clearly
mentioned that on hearing hue and cry,
several people came which included
Latoori son of Sri Dev, Mahendrapal son
of Saligram and her husband Satyaveer
and rescued her and in the process, she has
received several internal injuries. It was
evidently clear that the complainant
repeatedly
mentioned
presence
of
Mahendrapal on the scene of occurrence.
The witness Satyaveer has also mentioned
that several other persons had reached on
the spot. It is evident that in the statement
given by Mahendrapal that the applicant
has committed forgery and hence an
offence under sections 419, 420, 468, 471,
477 and 481 IPC were made out. There is
no infirmity in the impugned order.

7. I have perused the record of the
case and have heard argument of both the
sides. In the present case, it is apparent
that the accused applicant has been
summoned for offences under sections
419, 420, 468, 471, 177 and 181 IPC
pursuant to the charge-sheet having been
filed on a complaint made by opposite
party no.2 Kishori Lal. The allegations
against the accused-applicant and other coaccused are that one complaint, case no.
1226 of 2011 (Saroj MIshra vs. Yad Ram
and others) was filed by the accusedapplicant against opposite party no. 2 and
two others in which it was mentioned by
the complaint (accused-applicant in the
present case) that on 27.7.2011 at about
8.00 A.M. when she was going to attend
duty of Aganbari, the accused opposite
party no. 2 along with co-accused had
stopped her near the Devi Temple and coaccused Yad Ram had abusingly told her
that if she wanted to continue with the job,
she would have to give Rs.10,000/- to him.
His brother was driver with a M.L.A. and
that he would not allow here to do the job
and would continue to make police
1498 INDIAN LAW REPORTS ALLAHABAD SERIES
complaint against her and thereafter
started dragging her after holding her
hand. Other co-accused Kishori, Raja
Ram, companions of opposite party no. 2
in the present case, started beating the
complainant (applicant-accused) by which
she received internal injury. Her mobile
was also snatched away and the said
occurrence
was
seen
by
Latoori,
Mahendrapal and her husband Satyaveer
and when they came there, the accused had
fled from there giving life threat to her.
When she went to lodge the complaint,
same was not written, hence out of
compulsion, she gave an application to
SSP, Budaun but even then nothing was
done, then she lodged the present
complaint. In this case, the statements of
complainant Saroj Devi accused-applicant
were recorded under section 200 Cr.P.C.
on 25.8.2011 and statements of Satyaveer
as PW2 and Mahendrapal as PW1 were
recorded. On the basis of these statements,
summoning order had been passed in the
said complaint case of the accusedapplicant and other co-accused under
section 323, 504, 506 and 420 IPC and
regarding this it is being stated from the
side of opposite party no. 2 that the trial
court has been misled and false statement
of PW1 Mahendrapal has been got
recorded by the accused-applicant while
this witness was in jail on the date when
he is stated to have given evidence before
the court below in the said case. Therefore,
he could not have been present there and
this the forgery has been committed by the
applicant in getting the opposite party no.
2
and
his
companions
summoned.
Regarding this, forgery, present case has
been lodged by opposite party no. 2 being
case crime no. 592 of 2012 under section
419, 420, 468, 471, 177 and 181 IPC and it
is being argued that this case could not
have been filed by opposite party no. 2
Kishori Lal as complainant because this
was forgery committed before the court as
by getting examined a person who was on
the said date stated to be in jail, is shown
to have stated before the said court, which
would be an impostor. In this regard, the
argument made by the learned counsel for
the applicant is that in such a case the
proceedings of criminal case would be
barred by section 195 Cr.P.C. because in
such a case it was the court before which
false evidence was adduced, which only
could have lodged a complaint following
procedure laid down under section 195
read with 340 Cr.P.C. and no private
(person opposite party no. 2) could have
been permitted to lodge an FIR, hence the
proceedings being barred by section 195
Cr.P.C, the prosecution of the accusedapplicant needs to be quashed.

8. It transpires from the above facts
that
Saroj
Mishra
W/o
Satyaveer
(applicant) had filed a Complaint Case no.
1226 of 2011 wherein Saroj Mishra was
examined as complainant under Section
200 Cr.P.C., her husband, Satyaveer was
examined as P.W.2 under Section 202
Cr.P.C. and Mahendra Pal was examined
as P.W.1 under Section 202 Cr.P.C. and,
thereafter the trial court had summoned the
O.P. No.2 as an accused to face trial under
Sections 323, 504, 506 and 527 I.P.C.
According to the O.P. No.2, the said
summoning was based on false/forged
evidence adduced before the trial court
because P.W.1, Mahendra Pal was in jail in
Crime No. 664 of 2011 under Sections
323, 324, 504, 506 and 3(i)(10) S.C./S.T.
Act with effect from 19.07.2011 to
28.07.2011 while date of occurrence of the
said complaint was reported to be
27.07.2011, hence it was the version of the
O.P. No.2 that some imposter was made to
stand before the trial court to make false
2 All. Smt. Saroj Mishra Vs. State of U.P. & Anr.
1499
statement that the O.P. No.2 had caused
the occurrence which was witnessed by
him, as he could not be present due to his
being in jail on the date of occurrence and
to prove that, question/answer have been
obtained by him which is annexed by O.P.
No.2 with Counter-Affidavit as C.A.-I in
which it is recorded that the said witness
was lying in jail during that period. On the
basis of the said evidence, O.P. No.2 has
lodged F.I.R. in the present case which is
registered as Crime No. 592 of 2012 in
which occurrence is shown of 27.07.2011
at 6:10 p.m. with the aid of application
under Section 156 (3) Cr.P.C. and after the
investigation in the said matter, the chargesheet has been submitted against the
accused applicant along with two others
under Sections 419, 420, 168, 471, 177
and 181 I.P.C. It is argued on behalf of
accused applicant that cognizance cannot
be taken by the trial court on the said
charge-sheet because the same is barred by
the provisions of Section 195 Cr.P.C.,
therefore, this Court has to see as to what
is provided under the said section and for
the sake of convenience the same is
reproduced herein below:

"Section 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, 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;

(b) (i) of any offence punishable
under any of the following section of the
Indian Penal Code (45 of 1860), namely,
sections 193 to 196 (both inclusive), 199,
200, 205 to 211 (both inclusive) and 228,
when such offence is alleged to have been
committed in, or in relation to, any
proceeding in any Court, or

(ii) of any offence described in
section 463, or punishable under section
471, 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 subclause (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
1500 INDIAN LAW REPORTS ALLAHABAD SERIES
a tribunal constituted by or under a
Central, provincial or State Act if declared
by that Act to be a Court for the purposes
of this section.

(4) For the purposes of clause
(b) of Sub-Section (1), a Court shall be
deemed to be subordinate to the Court to
which
appeals
ordinarily
lie
from
appealable decrees or sentences of such
former Court, or in the case of a civil
Court from whose decrees no appeal
ordinarily lies, to the principal Court
having ordinary original civil jurisdiction
within whose local jurisdiction such Civil
Court is situate:

Provided that-

(a) where appeals lie to more than
one Court, the Appellate Court of inferior
jurisdiction shall be the Court to which such
Court shall be deemed to be subordinate;

(b). where appeals lie to a civil and
also to a Revenue Court, such Court shall be
deemed to be subordinate to the civil or
Revenue Court according to the nature of the
case or proceeding in connection with which
the offence is alleged to have been committed."

9. It is apparent from the above provision
that there is specific bar for a Court to take
cognizance for any offence punishable under
Sections 172 to 188 Cr.P.C. (both inclusive) as
per provision quoted above under Section 195
(a) (i) Cr.P.C. In the case at hand, the two
sections out of these are mentioned which are
Sections 177 and 181 I.P.C.

10. Now we have to see as to whether as
per allegations made in the F.I.R., the offences
under those sections are made out or not.

11. Necessary ingredients of Section 177
I.P.C. are as follows:

(i) that the accused was legally
bound to furnish information;

(ii) that such an information was to
be furnished to a public servant;

(iii) that the accused furnish such
information as true, knowing that it was false
(or having believed that it was false);

(iv) and that such information was
required for the purpose of preventing the
commission of an offence or in order to the
apprehension of an offender.

12. The necessary ingredients to
constitute an offence under Section 181
I.P.C. are that it must be shown that the
person
giving
information
knew
or
believed it to be false or that the
circumstances in which the information
was given were such that the only
reasonable inference is that the person
giving the information knew or believed it
to be false. That information is shown to
be false does not caste upon the party, who
is charged with an offence under section,
the burden of showing that, when he made
it, he believed it to be true.

13. If I analyse the facts of the
present case, I find that according to
prosecution version, P.W.1, Mahendra Pal
of the Complaint Case No. 1226 of 2011
was found to be in prison on the date of
occurrence of the said case i.e. on
27.07.2011, therefore, he could not be
present on the scene of occurrence on the
said date as according to the documentary
evidence given from the side of O.P. No.2
mentioned above, he was reported to be
lying in jail from 19.07.2011 to 28.07.2011
and probably, based on this documentary
evidence, the charge-sheet has been
submitted in the present case that some
other person may have been made to stand
before the said court at the time when
evidence under Section 202 Cr.P.C. was
being recorded allegedly as Mahendra Pal.
It would be presumed that on the said date,
2 All. Smt. Saroj Mishra Vs. State of U.P. & Anr.
1501
the person who stated before the said court
as P.W.1, Mahendra Pal could not be the
person who was lying in jail on the said
date, hence, some imposter might have
stated before the court deposing that he
had seen the occurrence of the said case on
27.07.2011,
therefore,
this
statement
would be covered in the category of false
statement given before the said court and
would be covered under the ingredients of
offence under Sections 177 and 181 I.P.C.,
therefore, apparently it appears that the bar
of
Section
195
Cr.P.C.
would
be
operational in the present case as. In such
a matter O.P. No.2 had a course open
before him to approach the trial court
which had recorded the said evidence and
to bring to its notice that some imposter
had given statement as P.W.1 in the said
case and hence said court should have
conduct an enquiry under Section 340
Cr.P.C. and if the said allegation was found
to be correct, the said court could have
moved a complaint before appropriate
forum but instead of this procedure being
followed in the present case, O.P. No.2 has
straight-way approached the police and
lodged an F.I.R. against the accused
applicants whereon after investigation,
charge-sheet has been submitted and
cognizance has been taken by the trial
court which appears to be erroneous in
view of the said provision of Section 195
Cr.P.C. It may be made clear that however
investigation on such a written report of
the O.P. No.2 could have been conducted
by the police but once charge-sheet was
submitted, cognizance could be taken by
the trial court only on a complaint made by
Court in this matter. I am also of the
opinion that whatever evidence has been
collected by the I.O. during investigation
would only be piece of evidence which
could be taken into consideration if in the
present case, the prosecution deemed it
proper to approach the court concerned to
get an enquiry held under Section 340
Cr.P.C. into this matter and, thereafter
request the court to lodge a complaint
before appropriate forum. It is absolutely
clear law that in such a matter only court
had the jurisdiction to lodge a complaint
after enquiry having been held under
Section 340 Cr.P.C. which process does
not appear to have been resorted to in the
present case. Further reliance has been
placed by the learned counsel for the
applicant upon State of U.P. Vs. Mata
Bhikh Singh and others (1994) 4 SCC 95
of which Para 5 and 6 are quoted hear-inbelow:

"5. The relevant provisions of
Section 195(1)(a)(i) of the Code reads
thus:

"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) ....

(iii) ....

except on the complaint in
writing of ''the public servant concerned'
or of some other public servant to whom
he is administratively subordinate."

6. The object of this section is to
protect persons from being vexatiously
prosecuted upon inadequate materials or
insufficient grounds by person actuated by
malice or ill-will or frivolity of disposition
at the instance of private individuals for
the
offences
specified
therein.
The
provisions of this section, no doubt, are
mandatory
and
the
Court
has
no
jurisdiction to take cognizance of any of
the offences mentioned therein unless there
is a complaint in writing of ''the public
servant concerned' as required by the
section without which the trial under
1502 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 188 of the Indian Penal Code
becomes void ab initio. SeeDaulat Ram v.
State of Punjab [1962 Supp 2 SCR 812 :
AIR 1962 SC 1206 : 1962 Cri LJ 286] . To
say in other words a written complaint by
a public servant concerned is sine qua non
to initiate a criminal proceeding under
Section 188 of the IPC against those who,
with the knowledge that an order has been
promulgated by a public servant directing
either ''to abstain from a certain act, or to
take certain order, with certain property in
his possession or under his management'
disobey that order. Nonetheless, when the
court in its discretion is disinclined to
prosecute the wrongdoers, no private
complainant can be allowed to initiate any
criminal proceeding in his individual
capacity as it would be clear from the
reading of the section itself which is to the
effect that no court can take cognizance of
any offence punishable under Sections 172
to 188 of the IPC except on the written
complaint
of
''the
public
servant
concerned' or of some other public servant
to whom he (the public servant who
promulgated
that
order)
is
administratively subordinate."

14. It is evident from the above cited
case that no private complainant can be
allowed
to
initiate
any
Criminal
proceeding in his individual capacity as it
would be clear from the reading of above
sections that no court can take cognizance
of the offences punishable under Section
172 to 188 I.P.C. except on written
complaint by the public servant concerned.
In this case, it has been held that the public
servant concerned would include his
successor also.

15. Reliance is also placed by the
learned counsel for the applicant upon
Abdul Rehman and another Vs. K.M.
Anees-Ul-Haq 2011 (10) SCC 696 para
nos. 23 and 25 are quoted herein below.

"23. As noticed above, a chargesheet has already been filed against the
respondent by CAWC before the competent
court. The respondent would, therefore,
have a right to move the said court for
filing a complaint against the appellants
for an offence punishable under Section
211 IPC or any other offence committed in
or in relation to the said proceedings at
the appropriate stage. It goes without
saying that if an application is indeed
made by the respondent to the court
concerned,
it
is
expected
to
pass
appropriate orders on the same having
regard to the provisions of Section 340 of
the Code. So long as the said proceedings
are pending before the competent court it
would neither be just nor proper nor even
legally permissible to allow parallel
proceedings
for
prosecution
of
the
appellants for the alleged commission of
the offence punishable under Section 211
IPC.

25. The substance of the case set
up by the respondent is that the allegations
made in the complaint lodged with CAWC
accusing him of an offence punishable
under Section 406 IPC and Sections 3 and
4 of the Dowry Prohibition Act were false
which
according
to
the
respondent
tantamounts to commission of an offence
punishable under Section 211 IPC apart
from an offence punishable under Section
500 IPC. The factual matrix for both the
offences is however one and the same.
Allowing the respondents to continue with
the prosecution against the appellants for
the offence punishable under Section 500
IPC would not, in our opinion, subserve
the ends of justice and may result in the
appellants getting vexed twice on the same
facts. We are doubtless conscious of the
2 All. Smt. Saroj Mishra Vs. State of U.P. & Anr.
1503
fact that any complaint under Section 500
IPC may become time-barred if the
complaint already lodged is quashed. That
is not an insurmountable difficulty and can
be taken care of by moulding the relief
suitably."

16. In the above-mentioned case, the
question involved was as to whether a
complaint
filed
by
the
respondent/complainant
against
the
appellants,
alleging
commission
of
offences punishable under Section 211,
500, 109 and 114 I.P.C. read with Section
34 I.P.C. was barred by provisions of
Section 195 Cr.P.C., 1973. The appellant
in this case had lodged a complaint with
regard to crime with Women Cell
(C.A.W.C.), accusing the respondent and
four others for the offence punishable
under Section 406 I.P.C. read with Section
34 I.P.C. and the D.P. Act. Upon filing of
the complaint by the appellants with
C.A.W.C., the respondent/complainant had
sought an order of anticipatory bail from
the Sessions Judge and an order granting
bail was passed in favour of the
respondents. The respondent's/complainant
case under Section 211 I.P.C. was that
accusations made by the appellant in the
report lodged with C.A.W.C. were totally
false and fabricated. The Magistrate
entertained the complaint under Section
211 I.P.C. and came to the conclusion that
a complaint for commission of an offence
punishable under Section 211 I.P.C. is
maintainable
even
at
the
stage
of
investigation.
The
Sessions
Judge,
dismissed the Criminal Revision thereagainst as barred by limitation. The High
Court by the impugned order dismissed the
Application under Section 482 Cr.P.C.
there-against holding that since no Judicial
Proceedings were pending in any court at
the time when the complaint under Section
211 and 500 I.P.C. was filed by the
respondent/complainant, the bar contained
in Section 195 Cr.P.C. was not attracted.
The question for determination before the
Hon'ble Supreme Court was as to whether
the anticipatory bail proceedings would
constitute judicial proceedings, and if so,
whether the offence allegedly committed
by the appellants could be said to have
been committed in relation to any such
proceedings. The Hon'ble Supreme Court
had allowed the appeal and gave finding
that bail proceeding conducted by the
court of Sessions Judge in connection with
the case which the appellants had lodged
with C.A.W.C. were judicial proceedings
and offence punishable under Section 211
I.P.C. alleged to have been committed by
the
appellants
related
to
the
said
proceedings. Such being the case, the bar
contained in Section 195 Cr.P.C. was
clearly attracted to the complaint filed by
respondent under Section 211 I.P.C.
against the appellants.

17. The facts of the above case are
not identical to the present case though the
accused appears to have been summoned
for offences under Sections 419, 420, 468
and 471 I.P.C. also but this Court does not
appear to have expressed any opinion with
respect to the fact as to whether the
allegations made in the present case would
constitute
offences
under
the
aforementioned sections also or not as the
full fledged evidence does not appear to
have been filed, moreover in the present
case, none had appeared from the side of
O.P. No.2 when the case was called out
and in his absence, this order is being
passed only on the strength of the CounterAffidavit filed from his side but I have
already
expressed
above
that
the
allegations prima-facie constitute offences
under Sections 177 and 181 Cr.P.C. which
1504 INDIAN LAW REPORTS ALLAHABAD SERIES
definitely find mention in the provisions
under Section 195 Cr.P.C. cited above.

18. Next reliance has been placed by
learned counsel for the applicants upon
para 14 of the Judgement of Soni Dinesh
Kumar Dahyalal Vs. State of Gujarat
CRIMINAL MISC.APPLICATION NO.
17270 of 2012, which is as follows:

"14.Though, in our judgment,
section 195 does not bar the trial of an
accused person for a distinct offence
disclosed by the same facts and which is
not included within the ambit of that
section, it has also to be borne in mind
that the provisions of that section cannot
be evaded by resorting to devices or
camouflages. The test whether there is
evasion of the section or not is whether the
facts disclose primarily and essentially an
offence for which a complaint of the court
or of the public servant is required. In
other words, the provisions of the section
cannot be evaded by the device of
charging a person with all offence to
which that section does not apply and then
convicting him of an offence to which it
does, upon the ground that such latter
offence is a minor offence of the same
character, or by describing the offence as
being one punishable under some other
section of the Indian penal Code,, though
in truth and substance the offence falls in
the category of sections mentioned in
section 195,Criminal Procedure Code.
Merely by changing the garb or label of an
offence which is essentially all offence
covered by the provisions of section 195
prosecution for such an offence cannot be
taken cognizance of by mis-describing it or
by putting a wrong label on it."

19. The above ruling seems to
suggest that it has to be borne by the court
in mind that the bar of provision under
Section 195 Cr.P.C. should not be evaded
by resorting to devices or camouflages and
it has been specified that the main test as
to whether there is evasion of the section
or not, is whether the facts disclose
primarily and essentially an offence for
which a complaint of the Court or of the
public servant is required. In the present
case, I find that though other offences
under Sections 419, 420, 468 and 471
I.P.C. are also mentioned to have been
committed by the accused applicant
although these offences do not find
mention in Section 195 Cr.P.C. which bars
the cognizance to be taken unless
complaint is filed in the matter by the
public servant concerned. I have already
expressed my opinion above that the main
allegation appears to be covered under
Section 177 and 181 I.P.C. while other
sections which have been mentioned, I
have not expressed my opinion as to
whether they also stand constituted in the
present case or not due to the lack of
evidence at this stage but even if they are
found to be constituted, it would not mean
that the proceedings in the present case
would not be barred by Section 195
Cr.P.C. as the main offence appears to fall
under Section 181 Cr.P.C. as the witness
Mahendra Pal who was examined as P.W.1
is stated to have deliberately made a false
statement as his presence was not possible
to be there on the date of occurrence as he
was reported to be lying in jail on the said
date of occurrence.

20. Lastly reliance is placed upon by
the learned counsel for the applicant upon
Govardhan Kumar Thakoredas Vs.
State of Gujarat in Crl. Misc. Application
No. 24632 of 2015 and connected matters
decided on 13.04.2017 in which in para
nos. 28, 29 and 52, following is held:
2 All. Smt. Saroj Mishra Vs. State of U.P. & Anr.
1505

"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 prosecutions. This provision has
been carved out as an exception to the
general rule contained under Section 190
Cr.P.C. 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.PC 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, AIR 1971 SC 1708; Patel
Laljibhai HC-NIC Page 32 of 41 Created
On Fri Apr 14 01:03:33 IST 2017
Somabhai v. The State of Gujarat, AIR
1971 SC 1935; 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 & Ors., (2005) 7 SCC 352;
and Iqbal 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.