SYED NAZIR HAIDER Vs. GAJRAJ

JUDGEMENT

(1.) THIS is a revision by a complainant against the order of the learned Judicial Magistrate, Rai Bareli, dismissing his complaint on the ground that the same was barred by Section 195. Cr.P C. The relevant facts are that the applicant had filed a complaint in the court of Judicial Magistrate, Rae Bareli against the respondent. The respondent No. 1 was the Station Officer of Police Station Nasirabad at that time Respondents 2 and 3 were the Second Officers while the others were constables. It was alleged that one Sipety Mohd. was murdered and his property looted on the night between August 8 and 10, 1972 by some culprits and thieves. A report was made by his sister in which no one was named. On the night between September 1 and 2, 1972, these respondents came to his house in the town of Jais and arrested him and brought him to out post Jais and then to Police Station Nasirabad. The respondents 1 to 3 asked him to confess and also to point out the looted property and on his refusal, the respondents 4 to 7 on the order of respondents 1 to 3 beat him and tortured him in different ways and sent him to jail later. He was released on bail on September 9, 1972. One of the bones of the palm of his foot was found fractured. It was also alleged that some of these respondents might have prepared false diary for making a false case against him and for that also they be punished. The complaint wag filed for offences under Section 147 and under SP. 218, 325, 329, 330, 331, 342 read with Section 149, I.P.C. On being summoned the respondents filed an application that the offences which are said to have been committed by them were in the course of the discharge of the duty of investigating a murder case against the applicant and as without proper sanction of the authority concerned, the cognizance could not be taken. The learned Magistrate held that Section 197, Cr.P.C. was not applicable because the respondents were such public servants who were not removable by the State but were removable by the other authorities. However he held that the complaint disclosed offence of forgery about forging the police diary and other papers and this if at all was committed by them in the course of proceedings in the court granting the remand and so the complaint was barred by Section 195(1)(c), Cr.P C. even though it had not been specifically pleaded. The applicant has now come up in revision before this Court and contends that the view taken by the Judicial Magistrate is legally wrong. There was no complaint for the offence under Section 463, I.P.C. at all and so bar of Section 195 (1) (c) was not attracted. It was further alleged that even otherwise so far as the other offence were concerned, the complaint for the same could not be dismissed as they were not covered by Section 195, Cr.P.C. THIS is true that the complainant had not filed a complaint against respondents for the offence under Sections 463 or 471 which are covered by Section 195(1) (c) Cr.P.C. He had filed the complaint in connection with preparing false papers only for the offence under S. 218, I.P.C. The learned lower court had, however, observed that a party could not be allowed to evade a law by merely giving out a different label to the offence alleged. He had relied for this upon Durqa Charan Naik v. State of Orissa (A.I.R W6 S.C. 1775). The learned lower court, however, does not appear to have pone through the case properly. It was held therein that where, the offence alleged were under two sections, which were distinct and even though the offence for one section may be covered by Section 195, Cr.P.C., the complaint about the other section, which is not so covered, is not barred. The observation, which was referred to by the learned Magistrate was only confined to cases where the offence alleged was actually under a section which was not covered by this bar but the complainant had given it a new label to evade this bar of Section 195. THIS was not the case here. The offences under Sections 218 and 463, I.P.C. are distinct and the allegation do not take the offence only under Section 463, I.P.C. They are covered by Section 218, I.P.C. Further it may be pointed out that even if the view taken by the learned court is correct that the offence in truth and substance was under Section 463, the bar of Section 195(1) (c) Cr.P.C. was not attracted. These offences were not committed by the respondents at a time when they were parties to any proceeding. The offences were committed before the proceedings were initiated for remand or otherwise. The learned lower court had, however, referred to Har Prasad v. Hans Ram (A.I.R. 1966 All. 124.) according to which this bar would operate even if the offence covered by it were committed at a time when the applicants were not parties to any proceeding in court but this was not held to be a good law in Shanti Devi v. State (1970 A.W.R (H.C.) 61) in view of it being against the earlier Full Bench Ruling of this Court in Emperor v. Raja Kitsha7 Pal Singh (A.I.R. 1931 All. 443) according to which before a bar of Section 195 could be attracted, the offence under Section 463 should have been committed during the proceeding in which they were parties. Further the Supreme Court in Patel Laljibhai v State of Gujarat (A.I.R. 1971 S.C. 1935) has approved Emperor v. Kuthal Pal (supra) case and so in that view of the matter the bar of Section 195 (1) (c) was not attracted to this case. The learned counsel for the respondents, however, contended that in any case the bar of Section 197, Cr.P.C was applicable and the view taken by the learned court below to the contrary was wrong. It is pointed that though the respondents were such public servants who were not removable by the State but were removable by the other authorities, Section 197, Cr.P.C. had been made applicable to all members of police force whatever their rank was. But the notification applying Section 197 (2) to members of police force was issued in 1975 whereas this complaint Avas filed in 1972 so Section 197, Cr.P. C, was also not attracted Thus the order passed by the learned Magistrate was wrong. Accordingly, the revision is allowed. The order passed by the learned Magistrate is set aside. He shall proceed with the complaint according to law.