# Sumit & Anr v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 401
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-08
- **Case number:** Criminal Misc. Writ Petition No. 17560 of 2023
- **Bench:** Anjani Kumar Mishra, Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sumit-anr-v-state-of-u-p-ors-51370
- **Pages:** 11

## Headnote

A. Constitution of India, 1950-Article 226,
21-Indian Penal Code, 1860-Sections 174A,88-Criminal
Procedure
Code,
1973Sections 195 & 2(d)-Quashing of FIRpetitioners charged for the offence u/s
174-A IPC only, cognizance of which is
402 INDIAN LAW REPORTS ALLAHABAD SERIES
barred u/s 195 Crpc-Section 195 CrPC
prohibits the court from taking cognizance
of any offence punishable under section
172 to 188, IPC-if the court cannot take
cognizance of the offence u/s 174-A IPC
on the basis of police report, then lodging
the FIR u/s 174-A IPC is futile and will be
against
the
provisions
of
Section
195(1)(a)(i) Cr.PC-Proceedings us/s 174A IPC can be initiated only on the basis of
written complaint of the court which had
initiated proceedings u/s 82 Cr.PC against
the accused -Police report of cognizable
offence cannot be treated as a complaintFIR quashed.(Para 22 to 24)

B. The proceedings u/s 174-A IPC is
initiated for providing punishment to the
person
who
despite
initiation
of
proceedings u/s 82 Crpc failed to comply
with the same and despite making the
same cognizable offence, it was included
u/s 195 (1)(a)(i) Crpc so as to prohibit the
police
from
making
unnecessary
harassement of the accused as the police
had already been proceedings against him
u/s 82 Crpc. Therefore the sole purpose of
legislature by putting Section 174-A in the
category of offence mentioned in Section
195(1)(a)(i) Crpc is to make act of
accused punishable for not honouring the
processs u/s 82 Crpc and also to protect
the unnecessary violation of personal
liberty of the accused.(Para 15)

The writ petition is allowed. (E-6)

List of cases cited:

## Text

1 All. Sumit & Anr. Vs. State of U.P. & Ors.
401
ऐसा अपराि ककया है।" वििाधयका ने अपने
वििेक का प्रयोर् करके धलखा है। जब अपराि के
अियि उपजस्र्थि हो, अपराि की अििारणा
करना िारा 228 में अिंिधनगकहि है िर्था न्यायालय
इस स्िर पर अधियोजन के कर्थनों पर
अनािश्यक सिंशय करिे हुए अपने क्षेत्राधिकार
को इस स्िर िक नहीिं बढा सकिा है जजससे कक
अधिशय शीघ्रिा से आरोपों को धनरस्ि ककया जा
सके।

10. महाराष्ट्र राज्य बनाम सोमनार्थ र्थापा
1996 4SCC 659 में 'अििाररि करने' की
व्याख्या सिंिाविि साक्ष्य के आिार पर विश्वास
अर्थिा स्िीकार करने अर्थिा िब िक धसद्ध
मानने, जब िक कक इसके विपरीि साक्ष्य न आ
जाय, के रूप में की र्यी। दूसरे शब्दों में, मामले
की सत्यिा मात्र िब स्पष्ट हो पायेर्ी जब
अधियोजन अपना साक्ष्य प्रस्िुि करिा है िर्था
साजक्षयों का प्रधिपरीक्षण बचाि पक्ष द्वारा ककया
जािा है, िारा 313 दिं०प्र०सिं० के अिंिर्गि
अधियुक्त से उसको आरोवपि करने िाले साक्ष्य
के विषय में प्रश्न पूछे जािे हैं िर्था अधियुक्त को
बचाि में साक्ष्य देने का अिसर कदया जािा है।
उक्त सिी सोपानों के पूणग होने के पिाि ही
विचारण पूणग होिा है िर्था न्यायालय अपनी
अिंधिम राय बनािे हुए धनणगय देिा है।

11. उक्त विधिक जस्र्थधि के आलोक में
प्रस्िुि मामले के िथ्यों का परीक्षण करने पर
यह प्रिीि होिा है कक मृिक ने एक मृत्यु पूिग पत्र
धलखकर प्रार्थीर्ण को अपनी मृत्यु के धलए दोषी
ठहराने के िुरन्ि बाद आत्महत्या कर ली।
धशकायिकिाग ने अपने बयान में िी उपरोक्त
आरोप का समर्थगन ककया है। आरोपों की सत्यिा
िारा 227 दिं०प्र०सिं० के स्िर पर िय नहीिं की जा
सकिी है िर्था यह विचारण के उपरान्ि ही िय हो
सकिा है ककन्िु उपरोक्त िथ्यों के आलोक में
प्रार्थी को उन्मोधचि ककये जाने का कोई आिार
नहीिं है। आलोच्य आदेश कदनािंक 18.11.2023,
जजसके द्वारा प्रार्थी का उन्मोचन प्रार्थगना-पत्र
धनरस्ि ककया र्या, में कोई त्रुकर् नहीिं है।

12. पुनरीक्षण बलहीन है और िद्नुसार
धनरस्ि ककया जािा है।
----------
(2024) 1 ILRA 401
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.01.2024

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Misc. Writ Petition No. 17560 of 2023

Sumit & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Akhilesh Srivastava, Sri Saksham Srivastava

Counsel for the Respondents:
G.A.

A. Constitution of India, 1950-Article 226,
21-Indian Penal Code, 1860-Sections 174A,88-Criminal
Procedure
Code,
1973Sections 195 & 2(d)-Quashing of FIRpetitioners charged for the offence u/s
174-A IPC only, cognizance of which is
402 INDIAN LAW REPORTS ALLAHABAD SERIES
barred u/s 195 Crpc-Section 195 CrPC
prohibits the court from taking cognizance
of any offence punishable under section
172 to 188, IPC-if the court cannot take
cognizance of the offence u/s 174-A IPC
on the basis of police report, then lodging
the FIR u/s 174-A IPC is futile and will be
against
the
provisions
of
Section
195(1)(a)(i) Cr.PC-Proceedings us/s 174A IPC can be initiated only on the basis of
written complaint of the court which had
initiated proceedings u/s 82 Cr.PC against
the accused -Police report of cognizable
offence cannot be treated as a complaintFIR quashed.(Para 22 to 24)

B. The proceedings u/s 174-A IPC is
initiated for providing punishment to the
person
who
despite
initiation
of
proceedings u/s 82 Crpc failed to comply
with the same and despite making the
same cognizable offence, it was included
u/s 195 (1)(a)(i) Crpc so as to prohibit the
police
from
making
unnecessary
harassement of the accused as the police
had already been proceedings against him
u/s 82 Crpc. Therefore the sole purpose of
legislature by putting Section 174-A in the
category of offence mentioned in Section
195(1)(a)(i) Crpc is to make act of
accused punishable for not honouring the
processs u/s 82 Crpc and also to protect
the unnecessary violation of personal
liberty of the accused.(Para 15)

The writ petition is allowed. (E-6)

List of cases cited:

1. Pradeep Kumar Vs St. of Punj. & anr., (2023)
CRM-M-Ins 41656 (O&M)

2. Jayant & ors. Vs St. of M.P. & ors.(2020)
(MANU/SC/0912)

3. Pradeep S. Wodeyar Vs St. of Kar.(2021) 0
Supreme SC 853

4. Maneesh Goomer Vs St. Crl. M.C No 4208 of 2018

5. Moti Singh Sirkarwar Vs St. of U.P & ors.(2016)
(MANU/UP/2481)
(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard learned counsel for the
petitioners and learned A.G.A. for the
State.

2. By means of the present writ
petition, the petitioners have challenged the
F.I.R. dated 17.7.2023 in Case Crime No.
162 of 2023, under Section 174-A I.P.C.,
P.S. Lodha, District-Aligarh.

Factual Matrix

3. An F.I.R. dated 21.10.2022 in Case
Crime No. 252 of 2022, under Sections
458, 380 I.P.C., P.S. Lodha, District Aligarh
was lodged by one Jitendra Singh against
Bachchu Singh, Ram Nivas and one
unknown person. During investigation of
the case, the name of the petitioners also
came into picture on the basis of evidence
collected. Thereafter, a charge sheet under
Sections 395, 412 I.P.C., was submitted by
the police on 20.2.2023 against the named
accused as well as against the present
petitioners. Learned Magistrate also took
cognizance on the above charge sheet on
13.3.2023.
Thereafter,
non-bailable
warrants were issued against the petitioners
on 16.3.2023 and a proclamation under
Section 82 Cr.P.C. was also issued on
20.5.2023
against
the
petitioners.
Thereafter, the impugned F.I.R. under
Section 174-A I.P.C. was lodged against the
petitioners on 17.7.2023 at P.S. Lodha,
District Aligarh.

Submission of the petitioners

4. Learned counsel for the petitioners
submits that the impugned F.I.R. is barred
under Section 195 Cr.P.C. as this Section
1 All. Sumit & Anr. Vs. State of U.P. & Ors.
403
specifically provides that cognizance of any
offence punishable u/s 172 to 188 I.P.C.,
cannot be taken by the court except on the
complaint in writing of the court concerned
or its officer. However, in the present case the
F.I.R. has been lodged by the Investigating
Officer and even charge sheet of the same
cannot be termed as "complaint" as per
Section 2(d) of Cr.P.C. because the same
provides only for non-cognizable offences
whereas Section 174-A I.P.C. is a cognizable
offence.

5. In support of his contention, learned
counsel for the petitioners has relied upon the
judgement of Punjab and Haryana High
Court delivered in Pradeep Kumar vs. State
of Punjab and another; CRM-M-416562023 (O&M), decided on 23.8.2023. In that
judgement, the Punjab and Haryana High
Court observed that cognizance u/s 174-A
cannot be taken except on the basis of a
formal written complaint as required u/s 195
Cr.P.C.

Submission of the respondents

6. Per contra, learned A.G.A. has submitted
that Section 174-A I.P.C. was introduced by
way of amendment in Cr.P.C. in 2005 without
making any amendment in Section 195
Cr.P.C. It is further submitted that all the
offences which are mentioned u/s 195 Cr.P.C.
i.e. from Section 172 to 188 I.P.C. are noncognizable offences for which bar has been
created for taking cognizance except on a
complaint. However, Section 174-A I.P.C.
is
cognizable
offence,
therefore,
bar
prescribed in Section 195 Cr.P.C. does not
apply for offence u/s 174-A I.P.C. It is
lastly submitted by learned A.G.A. that had
the legislature intended to include Section
174-A I.P.C in the category of cases
mentioned in Section 195(1)(a) Cr.P.C.,
then legislature would have amended the
provision of Section 195 Cr.P.C. so as to
include Section 174-A I.P.C.

7. In support of his contention,
learned A.G.A. has relied upon the
judgement of the Apex Court in Jayant and
others vs. State of Madhya Pradesh and
others; Criminal Appeal No. 824-825 of
2020,
decided
on
3.12.2020
(MANU/SC/0912/2020); the judgement in
the case of Pradeep S. Wodeyar vs. State of
Karnataka; Criminal Appeal Nos. 12881289-1290 of 2021, reported in 2021 0
Supreme (SC) 853 and also the judgement
of Delhi High Court in Maneesh Goomer
vs. State, Criminal M.C. No. 4208 of 2011,
decided on 4.1.2012 and judgement of
Allahabad High Court in the case of Moti
Singh Sirkarwar vs. State of U.P. and
others in Application u/s 482 No. 31819 of
2015 (MANU/UP/2481/2016).

Analysis

8. Before dealing with the contention
of learned counsel for the petitioners that
the F.I.R. u/s 174-A I.P.C. is barred by
Section 195 Cr.P.C., it will be appropriate
to discuss the legal provision, involved in
the present case. Section 195 Cr.P.C. which
prohibits the Court from taking cognizance
of any offence punishable u/s 172 to 188
I.P.C., is being quoted below:-

"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
404 INDIAN LAW REPORTS ALLAHABAD SERIES

(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 sections 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,
section 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 sub- clause (ii), except on the
complaint in writing of that Court, 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 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 the 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 in 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. From perusal of Section 195(1)(a)(i)
Cr.P.C., it is clear that the offences for which
there is prohibition on court to take
cognizance are non-cognizable offences from
Section 172 to 187 I.P.C. while Section 188
I.P.C. is mentioned as cognizable offence
under First Schedule of Cr.P.C. The definition
of "cognizable offences" is provided u/s
2(c) Cr.P.C. which is being quoted as
under:

"2(c). "cognizable offence" means an
offence for which, and "cognizable case"
means a case in which, a police officer
may, in accordance with the First Schedule
or under any other law for the time being in
force, arrest without warrant."

10. Therefore, it is clear that in
cognizable offences, police can arrest the
accused without warrant. It is also clear
1 All. Sumit & Anr. Vs. State of U.P. & Ors.
405
from perusal of Section 195 Cr.P.C. that
offences, punishable u/s 172 to 188 I.P.C.
are cognizable by the court only when a
complaint in writing is filed by public
servant concerned or his subordinate. As
per Section 21 I.P.C., "public servant"
includes every judge, including any person
empowered by law to discharge any
adjudicatory
function.
Therefore,
the
Magistrate who issues proceedings u/s 82
Cr.P.C. will be deemed to be public servant
within the meaning of Section 195 Cr.P.C.
The word "complaint" referred in Section
195 Cr.P.C. is defined u/s 2(d) Cr.P.C.
which is being quoted below:

"2(d).
"
complaint"
means
any
allegation made orally or in writing to a
Magistrate, with a view to his taking action
under this Code, that some person, whether
known or unknown, has committed an
offence, but does not include a police
report.

Explanation.- A report made by a
police officer in a case which discloses,
after investigation, the commission of a
non- cognizable offence shall be deemed to
be a complaint; and the police officer by
whom such report is made shall be deemed
to be the complainant."

11. From perusal of Section 2(d)
Cr.P.C., it is clear that though the complaint
does not include police report but the
explanation of Section 2(d) Cr.P.C. also
provides that if after investigation of a case
a police report is submitted by the police
officer, regarding non-cognizable offence
then same shall also be deemed to be
"complaint". Therefore, apart from making
allegation to Magistrate for taking action
against a person who has committed an
offence but also the police report/charge
sheet of non-cognizable offence will also
be deemed to be "complaint". From this
fact, it is clear that police report of
cognizable offence cannot be treated as a
complaint by any stretch of imagination.

12. Section 174-A I.P.C. was inserted
after Section 174 I.P.C. though Section
44(b) of the Code of Criminal Procedure
(Amendment) Act, 2005 and by Section
42(c) of this amendment Act, Section 174A I.P.C. was also included in the First
Schedule of Cr.P.C. after the entry relating
to Section 174 I.P.C. Sections 42(c) and
44(b) of the Code of Criminal Procedure
(Amendment) Act, 2005 are being quoted
as under:-

"42(c). after the entries relating to
section 174, the following entries shall be
inserted,

1.
2.
3.
4.
5.
6.
"17
4A
Failure to
appear at
specified
place and
specified
time
as
required
by
a
proclamat
ion
published
under
subsection
(1)
of
Section
82 of this
Code
Imprison
ment for 3
years, or
with
as
fine,
or
with both
Cogni
zable
Nonbailable
Magis
trate
of the
first
class

In a case
where
declaratio
n
has
been
made
under
subsection
(4)
of
Imprison
ment for 7
years and
fine
Ditto
Ditto
Ditto
"
406 INDIAN LAW REPORTS ALLAHABAD SERIES
section 82
of
this
Code
pronounci
ng
a
person as
proclaime
d offender

44(b). after section 174, the following
section shall be inserted, namely:-

"174A. 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."

13. After insertion of Section 174-A
in I.P.C. as well as in First Schedule of
Cr.P.C., further amendment was also made
in the year 2006 in Section 195(1)(b)
Cr.P.C., but no amendment was made in
Section 195(1)(a)(i) Cr.P.C. Therefore, at
the time of inserting Section 174-A in I.P.C.
as well as in First Schedule of Cr.P.C. after
Section 174, legislature was well aware
about
the
category
of
offences
u/s
195(1)(a)(i) Cr.P.C. and for this reason,
while making amendment in Section
195(1)(b)
Cr.P.C.
in
2006,
Section
195(1)(a)(i) Cr.P.C. was kept untouched
knowingly by the legislature. The above
position clearly reveals that while inserting
Section 174-A I.P.C., legislature was well
aware that in Section 195(1)(a)(i) Cr.P.C.,
apart from Section 188 I.P.C., one more
cognizable offence i.e. 174-A I.P.C. is
being inserted for providing the bar of
cognizance on the part of court for offences
mentioned in Section 195(1)(a)(i) Cr.P.C.,
except on the complaint.

14. In the judgement of Punjab and
Haryana High Court delivered in Pradeep
Kumar vs. State of Punjab and another
(supra), relied upon by the counsel for the
petitioners, above mentioned analysis of
this Court was also considered and it was
observed in paragraph Nos. 12.12 to 12.16
as under:-

"12.12. Be that as it may, it is
unmistakably evident that the omission of
Section 174A from the purview of Section
195 of the Cr.P.C. cannot be treated as a
mere inadvertent oversight. It gets more
particularly obvious, when viewed through
the lens of the deliberate simultaneous
legislative action taken to amend Schedule1. This deliberate choice to eschew any
alteration in Section 195 Cr.P.C. while
making concurrent changes elsewhere in
the same Code suggests a level of
intentionality
that
cannot
be
readily
discounted.

12.13. Having opined as above, I may
also hasten to add here that non-inclusion
of Section 174-A of IPC into the ambit of
Section 195 of Cr.P.C in its current form,
does though create some incongruity/legal
inconsistency. To elucidate, let us consider
an
illustrative
scenario:
Imagine
an
individual accused of an offense falling
under Section 174-A of the IPC. Being an
offense classified as cognizable, the police
have the authority to arrest the accused
without a warrant. However, Section 195 of
the Cr.P.C. bars any Court from taking its
cognizance except on the complaint in
writing made by the Court/Public servant
concerned. This creates an anomalous
1 All. Sumit & Anr. Vs. State of U.P. & Ors.
407
situation where an individual who is
accused under Section 174-A IPC could
potentially be arrested without a warrant,
yet
the
legal
requirement
for
his
prosecution for such an offense is by way of
filing a complaint under Section 195 of the
Cr.P.C.

12.14. The incongruity, if any, in the
legal framework rather warrants a closer
examination of legislative intent. The
statutory insistence ibid, of filing of
complaint
by
public
servant/court
concerned is in tune with fundamental right
to personal liberty as enshrined under
Article 21 of the Constitution of India. The
same underscores the importance of
aligning legal provisions to ensure that
personal liberty of an individual is given
paramount consideration,given that an
individual who is declared as proclaimed
person or offender, as the case may be, is a
mere suspect/under trial and not yet a
declared culprit. He is also equally entitled
to procedural protection in exercise of his
fundamental right under Article 21. Same
has to be thus safeguarded. Justice has to
be administered even to a suspect/under
trial without any ambiguity or drawing
inferences against him from legislative
ambiguities. Thus the incongruity ought not
to result in an asymmetry of rights and due
process. Such an inconsistency underscores
the critical need for clarity in legislation
and ascertaining its intent through judicial
interpretation in matters affecting personal
liberty and justice.

12.15. Nevertheless, even if we were to
entertain the notion that non-exclusion of
Section 174-A of IPC from the purview of
Section 195 Cr.P.C. was by an inadvertent
oversight/omission in the legislation, it is
crucial to recognize that any benefit arising
from such an inadvertence or oversight
would accrue to the advantage of the
accused, rather than the prosecution. In the
realm of criminal jurisprudence, matters
pertaining to personal liberty hold a
paramount
position.
Such
matters
pertaining to personal liberty should never
be predicated upon inferences drawn
against
the
accused
from
presumed
intentions and/or inadvertent omissions on
the part of the legislature. The sanctity of
personal liberty demands nothing less than
clear and categorical legislative provisions
ensuring that justice is not compromised by
inferences drawn against the accused from
legislative ambiguity or oversights.

12.16. In conclusion, it is held that
Section 195 of the Code of Criminal
Procedure (CrPC), in its present form,
encompasses Section 174-A of the Indian
Penal Code (IPC) within its purview."

15. This Court is also of the view that
proceedings u/s 174-A I.P.C. is initiated for
providing punishment to the person who
despite initiation of proceedings u/s 82
Cr.P.C. against him, failed to comply with
the same and despite making the same as
cognizable offence, it was included u/s
195(1)(a)(i) Cr.P.C. so as to prohibit the
police
from
making
unnecessary
harassment of the accused as the police had
already been proceeding against him u/s 82
Cr.P.C. Therefore, the sole purpose of
legislature by putting Section 174-A in the
category of offence mentioned in Section
195(1)(a)(i) Cr.P.C. is to make act of
accused punishable for not honouring the
process u/s 82 Cr.P.C. and also to protect
the unnecessary violation of personal
liberty of the accused because police is
already free to arrest and take action
against the accused person under the
proceeding of Section 82 Cr.P.C. as well as
pending N.B.W.

16. Though in cognizable offences
police can arrest an accused without
408 INDIAN LAW REPORTS ALLAHABAD SERIES
warrant but specific exception has been
carved out by inserting Section 174-A
I.P.C. in Section 195(1)(a)(i) Cr.P.C.,
despite being a cognizable offence.

17. So far as the judgement, relied
upon by learned A.G.A., passed by the
Delhi High Court in Maneesh Goomer
(supra) as well as judgement of Allahabad
High Court in Moti Singh Sikarwar
(supra) are concerned, same were based on
the incorrect interpretation that all the
offences,
mentioned
u/s
195(1)(a)(i)
Cr.P.C.,
are
non-cognizable
offences
ingnoring the fact that Section 188 I.P.C. is
a cognizable offence. Paragraph-9 of the
judgement passed by Delhi High Court in
Maneesh Goomer (supra) is being quoted
below:-

"9. As regards the next contention of
the Petitioner that for a prosecution under
Section 174-A IPC no cognizance can be
taken on a charge-sheet but on a complaint
under Section 195 Cr.P.C., it may be noted
that Section 174-A IPC was introduced in
the Code with effect from 23rd June, 2006.
Section 195(1) Cr.P.C. provides that no
Court shall take cognizance of offences
punishable under Section 172 to 188 (both
inclusive) of the IPC or of the abatement,
or attempt to commit the said offences,
except on the complaint in writing of the
public servant concerned or of some other
public
servant
to
whom
he
is
administratively subordinate. Section 195
Cr.P.C. has not been correspondingly
amended so as to include Section 174-A
IPC which was brought intp the Penal
Code with effect from 23rd June, 2006. The
Legislature was conscious of this fact and
that is why though all other offences
under
chapter
X
of
the
Criminal
Procedure Code are non- cognizable,
offence punishable under Section 174-A
IPC is cognizable. Thus the Police officer
on a complaint under Section 174-A IPC is
competent to register FIR and after
investigation thereon file a charge-sheet
before the Court of Magistrate who can
take cognizance thereon. Thus, I find no
merit in the contention raised by the
Learned Counsel for the Petitioner."

18. Similarly, paragraph 21.1 of the
judgement passed by Allahabad High Court
in Moti Singh Sikarwar (supra) is being
quoted as under:-

" 21.1. It is to be noted that all the
offences under Section 172 to 188 I.P.C.
(both inclusive) are non-cognizable and
bailable, whereas Section 174-A I.P.C.
which provides for punishment upto 7
years imprisonment and fine, in case the
offender fails to appear at the specified
place and the specified time, as required
by the proclamation published under
Section 82 Cr.P.C., is cognizable and nonbailable. The legislature was conscious of
this fact and that is why while introducing
Section 174-A in the I.P.C. in the year
2006,
it
made
no
corresponding
amendment in Section 195(1)(a) Cr.P.C. so
as to include Section 174- I.P.C. in between
all
the
non-cognizable
offences
and
bailable from Sections 172 to 188 I.P.C."

19. From perusal of aforesaid
observations
of
Single
Benches
of
Allahabad High Court as well as Delhi
High Court, it is clear that the very basis of
interpretation that Section 174-A I.P.C.
being cognizable offence cannot be read as
a section to be included in the category of
cases mentioned in Section 195(1)(a)(i)
Cr.P.C. is itself incorrect and does not lay
down correct law. So far as the judgement
of Apex Court in Jayant vs. State of
Madhya Pradesh (supra) as well as
1 All. Sumit & Anr. Vs. State of U.P. & Ors.
409
Pradeep S. Wodeyar (supra) are concerned,
in both the judgements controversy was
entirely different and the Hon'ble Apex
Court did not hold that Section 174-A I.P.C.
is not part of Section 195(1)(a)(i) Cr.P.C.

20. In the case of Jayant vs. State of
Madhya Pradesh (supra), the issue was
regarding registration of F.I.R. under Mines
and Minerals Act, 1957 as well as offence
u/s 379, 414 I.P.C. As there is a bar u/s 22
of Mines and Minerals Act which provides
that cognizance of the offence under Mines
and Minerals Act will not be taken by the
Court except upon a complaint by an
authorized person. Therefore, Hon'ble Apex
Court observed that apart from offences
under Mines and Minerals Act, offences
under I.P.C. have also been invoked,
therefore, bar of Section 22 of Mines and
Minerals Act will not be applicable. It was
further observed that after completion of
investigation the Magistrate will take
cognizance of the offence under I.P.C. but
the cognizance of offence under Mines and
Minerals Act will be taken on the basis of
complaint. Paragraph 13 of the of Jayant
vs. State of Madhya Pradesh (supra) is
being quoted as under:-

"13. After giving our thoughtful
consideration in the matter, in the light of
the relevant provisions of the MMDR Act
and the Rules made thereunder vis-a-vis the
Code of Criminal Procedure and the Penal
Code, and the law laid down by this Court
in the cases referred to hereinabove and for
the
reasons
stated
hereinabove,
our
conclusions are as under:

i) that the learned Magistrate can in
exercise of powers under Section 156(3) of
the Code order/direct the concerned Incharge/SHO of the police station to
lodge/register crime case/FIR even for the
offences under the MMDR Act and the
Rules made thereunder and at this stage the
bar under Section 22 of the MMDR Act
shall not be attracted;

ii) the bar under Section 22 of the
MMDR Act shall be attracted only when
the learned Magistrate takes cognizance of
the offences under the MMDR Act and
Rules made thereunder and orders issuance
of process/summons for the offences under
the
MMDR
Act
and
Rules
made
thereunder;

iii) for commission of the offence
under the IPC, on receipt of the police
report, the Magistrate having jurisdiction
can take cognizance of the said offence
without awaiting the receipt of complaint
that may be filed by the authorised officer
for taking cognizance in respect of
violation of various provisions of the
MMDR Act and Rules made thereunder;
and

iv) that in respect of violation of
various provisions of the MMDR Act and
the Rules made thereunder, when a
Magistrate passes an order under Section
156(3) of the Code and directs the
concerned In-charge/SHO of the police
station to register/lodge the crime case/FIR
in respect of the violation of various
provisions of the Act and Rules made
thereunder
and
thereafter
after
investigation the concerned In-charge of
the
police
tation/investigating
officer
submits a report, the same can be sent to
the concerned Magistrate as well as to the
concerned authorised officer as mentioned
in Section 22 of the MMDR Act and
thereafter the concerned authorised officer
may file the complaint before the learned
Magistrate along with the report submitted
by the concerned investigating officer and
thereafter it will be open for the learned
Magistrate
to
take
cognizance
after
following
due
procedure,
issue
process/summons
in
respect
of
the
410 INDIAN LAW REPORTS ALLAHABAD SERIES
violations of the various provisions of the
MMDR Act and Rules made thereunder and
at that stage it can be said that cognizance
has been taken by the learned Magistrate.

v) in a case where the violator is
permitted to compound the offences on
payment of penalty as per sub-section 1 of
Section 23A, considering sub-section 2 of
Section 23A of the MMDR Act, there shall
not
be
any
proceedings
or
further
proceedings against the offender in respect
of the offences punishable under the
MMDR Act or any rule made thereunder so
compounded.However, the bar under subsection 2 of Section 23A shall not affect any
proceedings for the offences under the IPC,
such as, Sections 379 and 414 IPC and the
same shall be proceeded with further."

21. However, in the present case the
petitioners are charged for the offence u/s
174-A I.P.C. only, cognizance of which is
barred u/s 195 Cr.P.C. Therefore, the
controversy in the present case is totally
different from that of the judgement relied
upon by learned A.G.A. Similarly, in the
judgement of Pradeep S. Wodeyar (supra),
relied upon by learned A.G.A., the
controversy was regarding irregularity of
the cognizance, therefore, controversy in
that case is also different from the present
one.

22. It is clearly established that
Section 174-A I.P.C. was inserted by way
of amendment in 2005 between Sections
172 to 188, therefore, it is clear that Section
174-A I.P.C. is part of the offences
mentioned in Section 195(1)(a)(i) Cr.P.C.
for which court is barred from taking
cognizance except upon a complaint by the
court.

23. It is also relevant to mention here
that cognizable offence itself permits the
police to arrest a person without warrant,
therefore,
registration
of
F.I.R.
of
cognizable offence itself will affect the
personal liberty of a person protected by
Article 21 of the Constitution of India.
Therefore, if legislature had intended to
invoke the provision of cognizable offence
only on the basis of filing written complaint
then permitting to register F.I.R. for direct
offence
will
definitely
amount
to
interfere/deprive the personal liberty of a
person. Therefore, once Section 195(1)(a)(i)
Cr.P.C prohibits the taking cognizance of the
offence u/s 174-A I.P.C., except on the basis
of written complaint, then permitting lodging
of an F.I.R. u/s 174-A I.P.C. will amount to
travesty of justice to the person concerned as
the personal liberty under Article 21 of the
Constitution cannot be deprived, except in
accordance with law.

Conclusion

24. Therefore, if the court itself cannot take
cognizance of the offence u/s 174-A I.P.C. on
the basis of police report, then lodging the
F.I.R. u/s 174-A I.P.C. is futile, and will be
against the provision of Section 195(1)(a)(i)
Cr.P.C. Therefore, proceedings u/s 174-A
I.P.C. can be initiated only on the basis of
written complaint of the court which had
initiated proceedings u/s 82 Cr.P.c. against the
accused and F.I.R. is barred by Section
195(1)(a)(i) Cr.P.C.

25. This Court also holds that
judgement of Single Benches of Allahabad
High Court in Moti Singh Sikarwar (supra)
as well as of Delhi High Court in Maneesh
Goomer (supra) have not laid down correct
law regarding interpretation of Section 174A I.P.C. read with Section 195(1)(a)(i)
Cr.P.C.

Decision
1 All. Mohhamad Aslam @ Mohhamad Aslam Raeeni Vs. Shri Ram Feren @ Ram Feren Pandey
411

26. In view of the above conclusion,
the F.I.R. dated 17.7.2022, lodged by
respondent No.3 in Case Crime No. 162 of
2023, under Section 174-A I.P.C., P.S. Lodha,
District Aligarh, is hereby quashed. However,
it is open to concerned court to file a written
complaint against the petitioners u/s 174-A
I.P.C. as per Section 195(1) Cr.P.C., if there is
no legal impediment.

27. With the aforesaid observation, the
writ petition is allowed.

28. A copy of this judgement be sent to
all District and Sessions Judges in the State of
Uttar Pradesh so as to apprise all judicial
officers as well as copy to the Director, JTRI,
Lucknow to sensitize the trainee judicial
officers about the law laid down by this
judgement.
----------
(2024) 1 ILRA 411
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.01.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Election Petition No. 3 of 2022

Mohhamad Aslam @ Mohhamad Aslam
Raeeni ...Petitioner
Versus
Shri Ram Feren @ Ram Feren Pandey
 ...Respondent

Counsel for the Petitioner:
In
Person,
Mohd.
Altaf
Mansoor,
Tanay
Chaudhary

Counsel for the Respondent:
Rajeiu Kumar Tripathi, Lalta Prasad Misra, Rajeiu
Kumar Tripathi

(A) Election - Code of Civil Procedure,
1908 - Order V Rule 20 - Substituted
service ,Order VII Rule 11 CPC - Rejection
of plaint , The Representation of the
People
Act,
1951
-
Section
8
-
Disqualification on conviction for certain
offences, Section 8-A - Disqualification on
ground of corrupt practices, Section 33-A -
Right to information, Section 36 - Scrutiny
of nominations, Section 81 - Presentation
of petitions, Section 82 - Parties to the
petition, Section 83 - Contents of petition,
Section 86 - Trial of election petitions,
Section 117 - Security for costs , Section
125-A - Penalty for filing false affidavit,
etc, The Conduct of Elections Rules, 1961
- Rule 94-A - Form of affidavit to be filed
with election petition.

(B) Election petition - two stages - (i) to
verify whether election petition has been
filed properly - strictly following the
provisions of Section 81 or 82 or 117 of
the
Act
and
without
ignoring
the
requirements of Section 83 of the Act read
with relevant provisions of C.P.C. - cause
of action should be clear and complete (ii)
if the election petition has been filed in
compliance of aforesaid provisions of the
Act and the cause of action is complete,
then it will qualify to the next stage i.e.
the complete trial of election petition on
merits - Section 86 of the Act makes no
reference to Section 83 thereof and so, prima
facie, an election petition cannot be summarily
dismissed under Section 86 of the Act for noncompliance with the provisions of Section 83
thereof but if the affidavit has not been filed
properly or the verification thereof is defective,
then the election petitioner may be given
opportunity to cure the defect, as such defect
cannot be held fatal to the maintainability of the
election petition. (Para - 38,48)

(C) The Representation of the People Act,
1951 - non-compliance with the provisions
of Section 83 of the Act is curable defects
- yet there must be substantial compliance
therewith - if there is total and complete noncompliance with the provisions of Section 83 of
the Act, the petition cannot be described as an
election petition and may be dismissed at the
threshold. (Para -40)

(D) The Allahabad High Court Rules, 1952
- Chapter IV - Rules 11- Form of Affidavit ,