Abdul Rehman & Ors vs K.M.Anees-Ul-Haq

Abdul Rehman & Ors. ...Appellants

Versus

K.M. Anees-ul-Haq ...Respondent

J U D G E M E N T

T.S. THAKUR, J.

1. Leave granted.

2. The short question that arises for determination in

these appeals is whether the complaint filed by the

respondent-complainant against the appellants, alleging

commission of offences punishable under Sections 211,

500, 109, and 114 read with Section 34 of Indian Penal

Code, 1860 was barred by the provisions of Section 195 of

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the Code of Criminal Procedure, 1973. The High Court of

Delhi has, while dismissing the petition under Section 482

of the Cr.P.C. filed by the appellants held that the

complaint in question is not barred and that the

Metropolitan Magistrate, Delhi, committed no error of law

or jurisdiction in taking cognizance of the offence

punishable under Sections 211 and 500 IPC. The appellants

who happen to be the accused persons in the complaint

aforementioned have assailed the said finding in the

present appeal by special leave. The appellants contend

that the bar contained in Section 195 Cr.P.C. was attracted

to the complaint filed by the respondent inasmuch as the

offence allegedly committed by them was "in relation to the

proceedings" in the court which the Respondent-

complainant had approached, for the grant of bail and in

which the court concerned had granted the bail prayed for

by him. What is the true purport of the expression "in

relation to any proceedings in any Court" appearing in

Section 195(1)(b)(i) of the Code of Criminal Procedure,

1973 and in particular whether the grant of bail to the

respondent in connection with the FIR registered against

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him would attract the bar contained in Section 195 Cr.P.C is

all that falls for determination. Before we advert to the

provisions of Section 195 of the Cr.P.C., we may briefly set

out the facts in the backdrop.

3. Appellant-Abdul Rehman lodged a complaint with the

Crime against Women (CAW) Cell, Nanakpura, Moti Bagh,

New Delhi, accusing the Respondent-K.M. Anees-Ul-Haq

and four others of commission of an offence punishable

under Section 406 read with Section 34 IPC and Sections 3

and 4 of the Dowry Prohibition Act. The complainant's case

is that the accusations made by the appellant in the report

lodged with the Women Cell were totally false and

fabricated. In particular, allegations regarding demand of

dowry as a condition precedent for performance of Nikah

between the complainant's nephew and Ms Aliya-appellant

No.3 in this appeal were also false and unfounded. It was

on that premise that the respondent filed a complaint

alleging that the appellants had instituted criminal

proceedings against him without any basis and falsely

charged him with commission of offences knowing that

there was no just or lawful ground for such proceedings or

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charge and thereby committed offences punishable under

Sections 211 and 500 read with Sections 109, 114 and 34

IPC.

4. The Metropolitan Magistrate entertained the complaint,

recorded statements of three witnesses produced by the

respondent and came to the conclusion that there was

sufficient material to show commission of offences

punishable under Sections 211 and 500 IPC. While doing

so, the Magistrate placed reliance upon a decision of this

Court in M.L. Sethi v. R.P. Kapur [AIR 1967 SC 528] to

hold that a complaint for commission of an offence

punishable under Section 211 IPC is maintainable even at

the stage of investigation into a First Information Report.

5. Aggrieved by the order passed by the Metropolitan

Magistrate, the appellant preferred a Criminal Revision

before the Additional Sessions Judge, New Delhi, who

dismissed the same as barred by limitation. The appellant

then preferred a petition under Section 482 Cr.P.C. before

the High Court of Delhi for quashing complaint No.180/1 of

2002 pending before the Metropolitan Magistrate and all

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proceedings consequent thereto. The High Court has, as

mentioned above, dismissed the said petition holding that

since no judicial proceedings were pending in any Court at

the time when the complaint under Sections 211 and 500

IPC was filed by the respondent-complainant, the bar

contained in Section 195 Cr.P.C. was not attracted nor was

there any illegality in the order passed by the Metropolitan

Magistrate summoning the appellants to face trial.

6. We have heard learned counsel for the parties at

considerable length and perused the order under challenge.

Section 195 of the Cr.P.C. to the extent the same is

relevant for our purposes may be extracted at this stage:

"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 -

xxx xxx xxx

xxx xxx xxx

(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

xxx xxx xxx

xxx xxx xxx"

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7. A plain reading of the above would show that there is

a legal bar to any Court taking cognizance of offences

punishable under 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 except on a complaint in

writing, of that Court or by such officer of the Court as may

be authorised in that behalf, or by some other Court to

which that Court is subordinate. That a complaint alleging

commission of an offence punishable under Section 211

IPC, "in or in relation to any proceedings in any Court", is

maintainable only at the instance of that Court or by an

officer of that Court authorized in writing for that purpose

or some other Court to which that Court is subordinate, is

abundantly clear from the language employed in the

provision. It is common ground that the offence in the

present case is not alleged to have been committed "in any

proceedings in any Court". That being so, the question is

whether the offence alleged against the appellants can be

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said to have been committed "in relation to any

proceedings in any Court".

8. It is not in dispute that upon the filing of the complaint

by the appellants with the CAW Cell the respondent-

complainant had sought an order of anticipatory bail from

the Additional Sessions Judge, Karkardooma, Delhi, nor is it

disputed that an order granting bail was indeed passed in

favour of the respondent. It is also not in dispute that on

completion of the investigation into the case lodged by the

appellants under Section 406 read with Sections 3 and 4 of

Dowry Prohibition Act, a charge sheet under Section 173

Cr.P.C. has already been filed before the Court competent

to try the said offences in which the respondents have been

released on regular bail on a sum of rupees ten thousand

with one surety of the like amount. The filing of the charge

sheet, however, being an event subsequent to the taking of

cognizance by the Metropolitan Magistrate on the complaint

filed by the respondent-complainant, the same can have no

relevance for determining whether cognizance was properly

taken. The question all the same would be whether the

grant of anticipatory bail to the respondent by the

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Additional Sessions Judge, Karkardooma Court, Delhi,

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.

9. The question whether grant of bail would attract the

bar contained in Section 195(1)(b)(i) Cr.P.C. is no longer

res integra. In Badri v. State [ILR (1963) 2 All 359] an

offence punishable under Section 211 IPC was alleged to

have been committed by the person making a false report

against the complainant and others to the police. It was

held that the said offence was committed in relation to the

remand proceedings and the bail proceedings which were

subsequently taken before the Magistrate in connection

with that report to the police and, therefore, the case was

governed by Section 195(1)(b) Cr.P.C. and no cognizance

could be taken except on a complaint by the Magistrate

under Section 195 read with Section 340 of the Cr.P.C. The

said decision came up for consideration before a three-

Judge Bench of this Court in M.L. Sethi v. R.P. Kapur [AIR

1967 SC 528], but this Court left open the question

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whether remand and bail proceedings before a Magistrate

would constitute proceedings in a Court. This Court

observed:

"We do not consider it necessary to express any opinion whether the remand and bail proceedings

before the Magistrate could be held to be proceedings

in a Court, nor need we consider the question whether

the charge of making of the false report could be

rightly held to be in relation to those proceedings. That

aspect need not detain us, because, in the case before

us, the facts are different."

10. The legal position regarding maintainability of a

complaint under Section 211 IPC by reference to a false

complaint lodged before the police was nevertheless stated

in the following words:

"Consequently, until some occasion arises for a

Magistrate to make a judicial order in connection with

an investigation of a cognizable offence by the police

no question can arise of the Magistrate having the

power of filing a complaint under Section 195(1)(b),

Cr.P.C. In such circumstances, if a private person,

aggrieved by the information given to the police, files a

complaint for commission of an offence under Section

211, IPC, at any stage before a judicial order has been

made by a Magistrate, there can be no question, on the

date on which cognizance of that complaint is taken by

the Court, of the provisions of Section 195(1)(b) being

attracted, because, on that date, there would be no

proceeding in any Court in existence in relation to

which Section 211, IPC can be said to have been

committed. The mere fact that on a report being made

to the police of a cognizable offence, the proceedings

must, at some later stage, and in a judicial order by a

Magistrate, cannot therefore, stand in the way of a

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private complaint being filed and of cognizance being

taken by the Court on its basis."

11. The question regarding bail proceedings before the

Court being proceedings in a Court within the meaning of

Section 195(1)(b)(i) once again fell for consideration before

this Court in Kamlapati Trivedi v. State of West Bengal

[1980 (2) SCC 91]. Kamlapati Trivedi had in that case filed

a complaint under Sections 147, 448 and 379 IPC against

six persons including one Satya Narayan Pathak. Warrants

were issued for the arrest of the accused, all of whom

surrendered before the Court of Sub-Divisional Judicial

Magistrate, Howrah, who passed an order releasing them

on bail. In due course the police completed the

investigation and submitted a final report under Section

173 Cr.P.C. stating that the complaint filed by Shri Trivedi

was false. The Magistrate agreed with the report and

passed an order discharging the accused. Sometime after

the discharge order made by the Magistrate, Mr. Pathak,

who was one of the accused persons of committing the

offence, filed a complaint before the SDJM accusing

Kamalapati Trivedi of the commission of offences

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punishable under Sections 211 and 182 IPC by reasons of

the latter having lodged with the police a false complaint.

Trivedi filed a petition before the High Court praying for

quashing of the proceedings before the Magistrate in view

of the bar contained in Section 195(1)(b)(i) of the Code.

That prayer was declined by the High Court who took the

view that criminal proceedings before the Court became a

criminal proceeding only when cognizance was taken and

not before and since no proceeding was pending before the

Court, the provisions of Section 195(1)(b)(i) were not

attracted. In appeal, this Court formulated the following

two questions:

"33. The points requiring determination therefore are:

"(a) Whether the SDJM acted as a Court when he

passed the orders dated May 6, 1970 and July 31, 1970

or any of them?

(b) If the answer to question (a) is in the

affirmative, whether the offence under Section 211 of

the Indian Penal Code attributed to Trivedi could be

regarded as having been committed in relation to the

proceedings culminating in either or both of the said

orders?"

12. Answering the questions in the affirmative this Court

observed:

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"60. As the order releasing Trivedi on bail and the one

ultimately discharging him of the offence complained of

amount to proceedings before a Court, all that remains

to be seen is whether the offence under Section 211 of

the Indian Penal Code which is the subject-matter of

the complaint against Trivedi can be said to have been

committed "in relation to" those proceedings. Both the

orders resulted directly from the information lodged by

Trivedi with the police against Pathak and in this

situation there is no getting out of the conclusion that

the said offence must be regarded as one committed in

relation to those proceedings. This requirement of

clause (b) aforementioned is also therefore fully

satisfied.

61. For the reasons stated, I hold that the complaint

against Trivedi is in respect of an offence alleged to

have been committed in relation to a proceeding in

Court and that in taking cognizance of it the SDJM

acted in contravention of the bar contained in the said

clause (b), as there was no complaint in writing either

of the SDJM or of a superior Court. In the result,

therefore, I accept the appeal and, setting aside the

order of the High Court, quash the proceedings taken

by the SDJM against Trivedi."

13. The above view was reiterated by this Court in State

of Maharashtra v. SK. Bannu and Shankar [(1980) 4

SCC 286]. The question in that case was whether

prosecution for an offence punishable under Section 476

IPC could be lodged at the instance of a transferee Court in

a case where the offence was committed in the other Court

which was earlier dealing with a different stage of the said

proceedings. Answering the question in the affirmative this

Court held that the two proceedings namely one in which

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the offence was committed and the other in which the final

order is made are, in substance, different stages of the

same integrated judicial process and that the offence

committed in the earlier of the said proceedings can be said

to be an offence committed in relation to the proceedings

before the Court to whom the case was subsequently

transferred or the Court which finally tried the case. It was

further held that bail proceedings before the Magistrate

were judicial proceedings even though such proceedings

had taken place at a stage when the offence against the

accused, who were bailed out, was under police

investigation. This Court observed:-

"16..............This being the real position, the bail

proceedings before Shri Deshpande, and the

subsequent proceedings before Shri Karandikar

commencing with the presentation of the challan by the

police for the prosecution of Deolal Kishan, could not be

viewed as distinct and different proceedings but as

stages in and parts of the same judicial process.

Neither the time-lag between the order of bail and the

challan, nor the fact that on presentation of the

challan, the case was not marked to Shri Deshpande

but was transferred under Section 192 of the Code, to

Shri Karandikar, would make any difference to the

earlier and subsequent proceedings being parts or

stages of the same integral whole. Indeed, the

commission of the offences under Sections 205, 419,

465, 467 and 471 of the Penal Code, came to light only

when Shri Karandikar, on the basis of the forged surety

bond in question, attempted to procure the attendance

of the accused. If the earlier proceedings before Shri

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Deshpande and the subsequent proceedings before Shri

Karandikar were stages in or parts of the one and the

same process -- as we hold they were -- then it

logically follows that the aforesaid offences could be

said to have been committed "in or in relation to" the

proceedings in the Court of Shri Karandikar, also, for

the purpose of taking action under Section 476 of the

Code.

21. In the instant case, it cannot be disputed that the

bail proceedings before Shri Deshpande were judicial

proceedings before a court, although such proceedings

took place at a stage when the offence against the

accused, who was bailed out, was under police

investigation. Thus, the facts in Nirmaljit Singh case

(1973) 3 SCC 753 were materially different. The ratio

of that decision, therefore, has no application to the

case before us.

14. Applying the above principles to the case at hand,

there is no gainsaying that the bail proceedings conducted

by the Court of Additional Sessions Judge, Karkardooma,

Delhi, in connection with the case which the appellants had

lodged with CAW Cell were judicial proceedings and the

offence punishable under Section 211 IPC alleged to have

been committed by the appellants related to the said

proceedings. Such being the case the bar contained in

Section 195 of the Cr.P.C. was clearly attracted to the

complaint filed by the respondent. The Metropolitan

Magistrate and the High Court had both failed to notice the

decision of this Court in Kamlapati Trivedi's and SK.

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Bannu's cases (supra) and thereby fallen in error in

holding that the complaint filed by the respondent was

maintainable. The High Court appears to have also failed to

appreciate that the real question that fell for consideration

before it was whether the bail proceedings were

tantamount to judicial proceedings. That question had been

left open by this Court in M.L Sethi's case (supra) but was

squarely answered in Kamalapati Trivedi's case (supra).

Once it is held that bail proceedings amounted to judicial

proceedings the same being anterior in point of time to the

taking of cognizance by the Metropolitan Magistrate, there

is no escape from the conclusion that any offence

punishable under Section 211 IPC could be taken

cognizance of only at the instance of the Court in relation to

whose proceedings the same was committed or who finally

dealt with that case.

15. As noticed above, a charge-sheet has already been

filed against the respondent by the CAW Cell 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 15

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 offence

punishable under Section 211 IPC.

16. It was next argued by learned counsel for the

respondent that while an offence under Section 211 IPC

cannot be taken cognizance of, there was no room for

interfering with the proceedings in so far as the same

related to the commission of an offence punishable under

Section 500, since the bar of Section 195 Cr.P.C. was not

attracted to the proceedings under Section 500 IPC. The

argument though attractive does not stand closer scrutiny.

The substance of the case set up by the respondent is that

the allegations made in the complaint lodged with CAW Cell

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accusing him of an offence punishable under Section 406

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 fact that any complaint under

Section 500 IPC may become time barred if the complaint

already lodged is quashed. That is not an insurmountable

difficult; and can be taken care of by moulding the relief

suitably. It would, in our opinion, be appropriate if the

orders passed by the Metropolitan Magistrate and that

passed by the High Court are set aside and the complaint

filed by the respondent directed to be transferred to the

Court dealing with the charge sheet filed against the

respondent. The said court shall treat the complaint as an

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application for filing of a complaint under Section 211 of the

IPC to be considered and disposed of at the final conclusion

of the trial; having regard to the provisions of Section 340

of IPC and the finding regarding guilt or innocence of the

respondent as the case may be recorded against him. The

respondent shall also have the liberty to proceed with the

complaint in so far as the same relates to commission of

the offence punishable under Section 500 of the IPC

depending upon whether there is any room for doing so in

the light of the findings which the court may record at the

conclusion of the trial against the respondent.

17. In the result these appeals are allowed, and order

dated 3rd February, 2003 passed by the Metropolitan

Magistrate and that passed by the High Court dated 26th

February, 2008 are quashed. Criminal complaint No.180/1

of 2002 filed by the respondent shall stand transferred to

the Court of competent jurisdiction seized of the charge-

sheet filed against the respondents, for such orders as the

Court may deem fit at the conclusion of the trial of the

respondent having regard to the observations made above.

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...................................J.

(CYRIAC JOSEPH)

...................................J.

New Delhi (T.S. THAKUR)

November 14, 2011

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