BANSI LAL Vs. STATE

JUDGEMENT

(1.) The petitioner herein, Ch. Bensi Lal, lodged a report with the Station House Officer, Police Station Parliament Street, New Delhi, on the allegations that two persons had forcibly entered his house to steal certain papers. A case under Sections 452/380, Indian Penal Code, was accordingly registered. After investigation the police-officer sought cancellation of the said case. It appears that the Court was requested to file a complaint against the petitioner herein under Section 211, Indian Penal Code, on the allegation that he had lodged a false report to the police. The learned -Magistrate, Mr. Brijesh Kumar, while cancelling the case declined to proceed against the petitioner and passed the following order : "As per request of the police the case is cancelled. However, I hold that as there is no specific accusation against any specific person as such I do not agree with the prosecution to file a complaint under Section 211. Moreover, the perusal of the prosecution story reveals that former Defence Minister wanted to shield himself for the reasons best known to him by filing the said complaint. Case is cancelled. sd/- Brijesh Kumar 30.5.78" Thereafter a complaint under Section 182, Indian Penal Code, was filed by the Station House Officer, Police Station Parliament Street, New Delhi, against the petitioner herein. The petitioner was summoned and on appearance moved an application dated July 10, 19 78 seeking the dismissal of the complaint on the ground that the learned Magistrate having declined the permission to file a complaint under Section 211, Indian Penal Code, vide his order dated May 30, 1978, the present complaint under Section 182, Indian Penal Code, was mala-fide and an attempt to circumvent the provisions of Section 195(1)(b) of the Code of Criminal Procedure. By his order passed on August 7, 1978, the learned Magistrate, while dismissing the application, held that the provisions of Section 195 (1) (b) of the Code had not been contravened. It was observed that the Full Bench decision of this Court reported in Narayana Bamchandra Karambulker v. State, ILR (1972) I Delhi 617, was not applicable to the facts of the case.

(2.) Mr. M.C. Bhandare, learned counsel for the petitioner has submitted that the impugned order is against the settled law and is liable to be set aside. The learned Magistrate, it is urged, did not follow the decision of the Full Bench in Narayana Ramchandra Karambulker's case (supra). His contention, which he had raised before the Magistrate as were; as before me, is that the Court having refused to file a complaint under Section 211, Indian Penal Code, the present complaint under Section 182, Indian Penal Code, is an attempt to circumvent the provisions of Section 195 (1) (b) of the Code, and, therefore, cognizance for that offence cannot be taken. The complaint is, therefore, to be dismissed. He has also cited a recent decision of the Supreme Court reported in Kamalapati Trivedi v. The State of West Bengal, A.I.R. 1979 S.G. 777, in support of his contention that the order passed by the Magistrate on May, 30, 1978, refusing to file the complaint and cancelling the case was a judicial order.

(3.) In my view, the reasons given by the learned Magistrate in not following the decision of the Full Bench of this Court, are not cogent. His finding that : In the instant case the police has not circumvented the law. There was no case under Section 211, Indian Penal Code, therefore, the prosecution moved the Court under Section 182, Indian Penal Code, and complied with the provisions of Section 195 (1) (a) of the Code of Criminal Procedure', is not correct. The order dated May 30, 1978 declining the recommendation of the police that the Court should file a complaint under Section 211, Indian Penal Code, is a judicial order. It cannot be said that there was no case under Section 211, Indian Penal Code. Mr. K.K. Sud, appearing on behalf of the State, did not controvert this proposition. The result is that cognizance of an offence under Section 211 or under Section 182, Indian Penal Code, cannot be taken by any Court. The observation of V.D. Misra, J. (as he then was) in Narayana Ramchandra Karambelker's case (supra) that after passing of the judicial order the police cannot be allowed to circumvent the law and set at naught the prohibition contained in Section 195(l)(b) of the Code by the subterfuge of filing a complaint under ) Section 182 of the Indian Penal Code, is fully applicable to the facts of the present case. It was held in the said case as under : "In the instant case the petitioner had lodged a report with the police charging the persons named therein with the commission of an offience. It was registered and investigated. After completing the investigation the police made a report under Section 173 of the Code to the Magistrate who passed an order discharging the accused. This order has been held, 'judicial order' by us. The result is that if the report lodged by the petitioner is found false, an offence punishable under Section 211 of the Indian Penal Code has been committed in relation to proceedings in a Court, and unless there is a complaint in writing by the Court in terms of Section 195(1) (b), no cognizance of the offence can be taken by a Court. It is true that in the instant case the police had filed the complaint in respect of the offence under Section 182 of the Indian Penal Code and not under Section 211 of the Indian Penal Code. But the facts that a false charge of kindnapping was made against the persons named in the report knowing that there was no just or lawful ground for such charge, disclose the commission of an offence under Section 211 of the Indian Penal Code which is a graver form of offence than the one under Section 182 of the Indian Penal Code. The police cannot be allowed to circumvent the law and set at naught the prohibition contained in Section 195 (1) (b) of the Code by the subterfuge of filing a complaint under Section 182 of the Indian Penal Code." It is therefore, clear that the Court having refused to file a complaint under Section 211, Indian Penal Code, the present complaint filed under Section 182 Indian Penal Code, is an attempt to circumvent the law. I allow this petition and quash the impugned complaint.