IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 686 of 2006
With
Cr. M.P. No. 687 of 2006
Manikant Dubey -----------Petitioner( in Cr.M.P. 686/06)
Pravash Chandra Mishra----Petitioner( in Cr.M.P. 687/06)
Vs.
1. The State of Jharkhand
2. Kiran Kumari Mishra @ Kumari Kiran------Opposite Parties
(in both the cases)
CORAM: HON'BLE MR. JUSTICE PRASHANT KUMAR
For the Petitioners: Mr. R. Ranjan (in both the cases)
For the Opposite Parties: Mr. T.N. Verma, APP (in Cr.M.P. 686/06)
Mr.V.K. Prasad, APP (in Cr.M.P. 687/06)
C.A.V. ON 07.07.2009 Delivered On 15.07.2009
9/ 15/07/2009
In both these applications, similar question of law is
involved and in both cases Kiran Kumari Mishra @ Kumari Kiran is
O.P. No. 2, therefore, both the applications heard together and are
being disposed of by this common order.
2. It appears that the O.P. No. 2 had filed two complaints in
the court of CJM, Dumka bearing number P.C.R Case No. 270 of 2005
against the petitioner of Cr.M.P. No. 686 of 2006 and another bearing
P.C.R. Case No. 341 of 2005 against the petitioner of Cr.M.P. No. 687
of 2006. In both the complaints, O.P. No. 2 had stated that she had
filed an application for maintenance under section 125 of the Cr.P.C.
against her husband Uttam Kumar Choubey and the said application
was registered as Cr. Misc Case No. 39 of 2002 and is pending in the
court of Principal Judge, Family Court, Dumka. It is further alleged that
petitioners Manikant Dubey and Pravash Chandra Mishra had deposed
in the aforesaid Cr. Misc case no. 39 of 2002 as D.W. 1 and D.W. 4
respectively. It is alleged that they have given false evidence before the
Principal Judge, Family Court, Dumka. Accordingly, she alleged that
both the petitioners had committed an offence under section 193, 196,
200, 209, 417, 468 and 469 of the IPC and prayed that the petitioners
be punished for the said offences after conducting a full fledged trial. It
appears that the learned CJM, Dumka sent both the complaints to
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Officer-In-Charge, Dumka (T) police station for investigation as per the
provisions contained under section 156(3) of the Cr.P.C. It appears that
after receipt of the complaint petitions, two First Information Reports
bearing Dumka(T) P.S. Case No. 273 of 2005 dated 18.12.2005 and
Dumka ( T) P.S. Case No. 155 of 2005 dated 20.7.2005 instituted under
section 193, 196, 200, 209, 417, 468 and 469 of the IPC and police
took up investigation. The present applications filed for quashing the
aforesaid two First Information Reports and also entire criminal
proceeding arising from those First Information Reports.
3. It is submitted by learned counsel for the petitioners that
from perusal of complaint petitions, it appears that the allegation has
been made against both the petitioners for adducing false evidence in
court and it is alleged that the petitioners had committed an offence
under sections 193, 196, 200, 209, 417, 468, 469 of the IPC. It is
submitted that under the aforesaid circumstance, section 195 and 340
of the Code of Criminal Procedure come into play and as per the said
provision the only procedure which could be followed was to make an
application to the court in which the alleged false evidence was given. It
is submitted that, that court has power under section 340 of the Cr.P.C.
to make enquiry and if the said court is of opinion that the offences
enumerated in section 195(1)(b) of the Code of Criminal Procedure has
been committed, it may file a complaint in a competent court. It is
submitted that in view of aforesaid provisions enumerated in section
195 and 340 of the Code of Criminal Procedure, no FIR and/or private
complaint can be filed and the police have no power to investigate on
the basis of the aforesaid FIR. Accordingly, it is submitted that the CJM,
Dumka had committed serious illegality in sending the aforesaid two
complaint petitions to Dumka (T) police station for registration of FIR
and investigation. It is submitted that in view of the aforesaid bar
prescribed in the Code of Criminal Procedure, the aforesaid two First
Information Reports and further criminal proceeding initiated on the
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basis of said First Information Reports are liable to be quashed by this
Court. The learned counsel for the petitioners in support of his
contention had relied upon the judgment of Hon’ble Supreme Court in
Iqbal Singh Marwah and another vs. Meenakshi Marwah and
another reported in (2005) 4 SCC 370.
4. On the other hand, learned counsel for the opposite party,
submitted that section 195 and 340 of the Code of Criminal Procedure
do not control the power of police to investigate a cognizable offence
reported to it. It is further submitted that under section 195 of the
Cr.P.C. the bar is with regard to the taking of the cognizance. Thus if
after investigation police submits charge sheet then in view of section
195 of the Cr.P.C. the court concerned cannot take cognizance on the
basis of said charge sheet. But, the court concerned can make enquiry
as per the provisions contained under section 340 of the Cr.P.C. and if
the court is of opinion that the offences enumerated under section 195
(1)(b) has been committed, it can file complaint. The learned counsel
for the opposite party in support of his contention relied upon two
judgments of Supreme Court delivered in State of Punjab Vs. Raj
Singh and another (1998)2SCC391 and in M. Narayandas Vs. State
of Karnataka and others (2003)11SCC251. It is submitted that in view
of the aforesaid law laid down by their Lordships of Supreme Court,
there is no illegality in institution of aforesaid two First Information
Reports and therefore the present petitions filed by the petitioners is
liable to be dismissed.
5. Having heard the submissions, I have scrutinized the law
and the facts of the case. Admittedly the allegation in both the
complaint petitions is that the petitioners have falsely deposed in the
court of Principal Judge, Family Court in connection with Cr. Misce
Case No. 39 of 2002 and therefore the complainant (O.P. No. 2)
alleged that the petitioners in both the cases had committed an offence
under sections 193, 196, 200, 209, 417, 468 and 469 of the IPC. It is
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also not in dispute that the offences under section 193, 196, 200, 209,
468 and 469 is covered by section 195(1)(b) of the Code of Criminal
Procedure. From bare perusal of section 195 of the Code of Criminal
Procedure, it is clear that it put a bar upon the court from taking
cognizance of the offences enumerated in section 195(1)(b) of the
Cr.P.C. except on the complaint in writing of that court or of some
other court to which that court is subordinate.
6. Section 340 of the Code of Criminal Procedure prescribed
the procedure regarding lodging of complaint by the court in which the
offences enumerated in section 195(1)(b) has been committed. As per
the said provision it is incumbent upon the court concerned to make an
enquiry and if on enquiry it come to the conclusion that the offences as
stated above have been committed it can make a complaint thereof in
writing before a competent court.
7. Now the question arose as to whether section 195 and
340 of the Code of Criminal Procedure put an embargo on the power of
police to investigate a case in which it received information that the
offences enumerated in section 195(1)(b) has been committed by
some person. The aforesaid question was considered by their
Lordships of Supreme Court in State of Punjab vas Raj Singh and
another reported in (1998)2SCC391 and their Lordships had held as
follows:-
“We are unable to sustain the impugned order of
the High Court quashing the FIR lodged against the
respondents alleging commission of offences under
Sections 419, 420, 467 and 468 IPC by them in course of
the proceeding of a civil suit, on the ground that Section
195(1)(b)(ii) CrPC. prohibited entertainment of and
investigation into the same by the police. From a plain
reading of Section 195 CrPC it is manifest that it comes into
operation at the stage when the court intends to take
cognizance of an offence under Section 190(1) CrPC; and it
has nothing to do with the statutory power of the police to
investigate into an FIR which discloses a cognizable
offence, in accordance with Chapter XII of the Code even if
the offence is alleged to have been committed in, or in
relation to, any proceeding in court. In other words, the
statutory power of the police to investigate under the Code
is not in any way controlled or circumscribed by Section
195CrPC. It is of course true that upon the charge sheet (
5challan), if any, filed on completion of the investigation into
such an offence the court would not be competent to take
cognizance thereof in view of the embargo of Section
195(1)(b) CrPC, but nothing therein deters the court from
filing a complaint for the offence on the basis of the FIR (
filed by the aggrieved private party) and the materials
collected during investigation, provided it forms the
requisite opinion and follows the procedure laid down in
Section 340 Cr.PC. The judgment of this Court in
Gopalakrishna Menon V. D. Raja Reddy on which the High
Court relied, has no manner of application to the facts of the
instant case for there cognizance was taken on a private
complaint even though the offence of forgery was
committed in respect of a money receipt produced in the
civil court and hence it was held that the court could not
take cognizance on such a complaint in view of Section 195
CrPC.”
The same view was again reiterated by Hon’ble Supreme
Court in M. Narayandas V. State of Karnataka and others reported
in (2003)11SCC251.
8. Thus, in view of the aforesaid law laid down by their
Lordships of Supreme Court, it is clear that section 195 and 340 of the
Code of Criminal Procedure do not control or circumscribe the power of
police to investigate under the Criminal Procedure Code. Once the
investigation is completed then the embargo and/or bar under section
195 Cr.P.C. come into play and in that event on the basis of charge
sheet submitted by the police the court would not be competent to take
cognizance. However the court concerned could file a complaint taking
into account the facts stated in the FIR, the material collected during
investigation but before doing so the court concerned is required to
follow the procedure laid under section 340 of the Code of Criminal
Procedure.
9. In that view of the matter, I find that learned CJM, Dumka
had committed no illegality in sending the complaint petitions to Officer-
In-Charge, Dumka (T) Police Station for institution of case and
investigation and consequently Officer-In-Charge, Dumka(T) Police
Station had also not committed any illegality in lodging First Information
Reports.
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10. The judgment relied upon by the learned counsel for the
petitioners have of no help, because the question involved before their
Lordships of Supreme Court in the aforesaid decision cited by learned
counsel for the petitioners (2005)4SCC370 is not involved in the
present case. The question before their Lordships of Supreme Court in
that case was Whether the bar contained in section 195(1)(b)(c)
would apply where forgery of a document was committed before
the said document was produced in court and the question was
answered by their Lordships that the said bar would not be applicable
to a case where the forgery of the document was committed before the
document was produced in a court. Admittedly in this case the said
question is not raised by any of the party. Hence the judgment cited by
learned counsel for the petitioners is not applicable in this case.
11. In view of the discussion made above, I find no reason to
quash the concerned First Information Reports as mentioned above
and the criminal proceeding arising from the said First Information
Reports.
12. In the result, I find no merit in both the applications, hence
the same are dismissed.
(Prashant Kumar, J.)
Jharkhand High Court, Ranchi
Dated 15/07/2009
Sharda/NAFR