Amit Vashistha vs Suresh .

AMIT VASHISTHA .........APPELLANT(S) VERSUS SURESH AND ANOTHER .....RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

The appellant is aggrieved by order dated 30.01.2009 in

Criminal Revision No.445 of 2007. By the impugned order, the

respondent has been acquitted of the charge under Section 228 of

the Indian Penal Code on the premise that the adjudication

proceedings under Section 7A of the Employees Provident Funds

and Miscellaneous Provisions Act, 1952 (hereinafter for short the

‘Act’) not being before a court, the complaint itself was not

maintainable.

2. In an adjudication proceeding under Section 7A of the Act,

with regard to provident fund claims of the respondent, the

1 Assistant Provident Fund Commissioner filed a complaint on

22.06.2001 before the Judicial Magistrate First Class under

Section 228 IPC, that the respondent had obstructed and

interfered with the proceedings by abusing the Presiding Officer,

and rushed to assault him, but the complainant was saved by the

office staff. The Magistrate convicted the respondent till rising of

the Court and imposed fine of Rs.500/- with default stipulation.

In appeal, preferred by the respondent, the Sessions Judge while

maintaining the conviction released him under the Probation of

Offenders Act, 1958 on an undertaking of good behavior for a

period of one year. Aggrieved, the respondent moved the High

Court in a revision application leading to the impugned order,

thus the present appeal.

3. Learned Counsel for the appellant submits that the High

Court erred in not appreciating that the proceedings under

Section 7A were judicial proceedings, and misdirected itself in

concluding that the office of the appellant was not a court, and

therefore, the complaint itself was not maintainable under

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

2 referred to as ‘the Cr.P.C’).

4. The respondent appearing in person, supporting the

impugned order submitted that the proceedings under Section 7A

not being before a court, the High Court rightly held that no

complaint could have been filed under Section 195(1)(b)(i) of the

Cr.P.C which was applicable only to proceedings before a court.

It was next submitted that in any event the complaint could have

been filed, if at all, before the appellate tribunal under Section 7J

of the Act, and not before the magistrate directly.

5. The facts are not in dispute, and neither is it in dispute that

the appellant is a public servant. The only question for

consideration is if the complaint under Section 228 IPC was

maintainable in view of the proceeding under Section 7A deemed

to be a judicial proceeding or whether the proceedings had to be

before a court to invoke Section 195(1)(b)(i) Cr.P.C.

6. Section 2(i) of the Cr.P.C defines a judicial proceeding to in-

clude any proceedings in the course of which evidence is or may

3 be legally taken on oath. This power is indisputably statutorily

vested in the authority holding proceedings under Section 7A of

the Act. The legislature, in its wisdom, considering the serious-

ness of the adjudicatory process under the said provision, vested

it with the nature of a judicial proceeding within the meaning of

Sections 193 and 228 IPC. If the proceedings under Section 7A

are deemed to be a judicial proceeding by fiction, it must be car-

ried to its logical conclusion. Therefore, such a judicial proceed-

ing can well be equated for that purpose with a court under Sec-

tion 195(1)(b)(i). Whether the proceedings under Section 7A will

partake the character of a court or not, is not relevant to the con-

troversy. The High Court failed to consider the effect of the judi-

cial nature of the proceeding, simply by reference to Section

195(1)(b)(i) Cr.P.C. to hold that the proceedings did not partake

the nature of a court, and therefore, the complaint was not main-

tainable. A similar issue was considered in Lalji Haridas vs.

State of Maharashtra, (1964) 6 SCR 700, observing as follows:-

“14. It is somewhat remarkable that though Section 193 IPC, refers to a judicial proceeding, Section 195 CrPC refers to a proceeding in any court; it does not say a judicial proceeding in any court. Mr Desai contends that reading Section 193 IPC and Section

4 195(1)(b) CrPC together, it would not be unreason-

able to hold that proceedings which are judicial un- der the former, should be taken to be proceedings in any court under the latter. The whole basis of providing for a higher sentence in regard to offences committed at any stage of a judicial proceeding ap- pears to be that the legislature took the view that the said offences were more serious in character, and so, it distinguished the said offences from sim- ilar offences committed at any stage of other pro- ceeding. The argument is that while providing for a higher sentence in respect of this more serious class of offences committed at any stage of judicial pro- ceedings, the legislature intended that there should be a safeguard in respect of complaints as regards the said offences and that safeguard is provided by Section 195(1)(b) CrPC. In other words, an offence which is treated as more serious by the first para- graph of Section 193 IPC because it is an offence committed during the course of a judicial proceed- ing should be held to be an offence committed in any proceeding in any court for the purpose of Sec- tion 195(1)(b) CrPC. On this argument, it is not ne- cessary to consider whether the Income Tax Officer is a court or not, for, in substance, the contention is that as soon as Section 37(4) of the Act was en- acted, the proceedings before an Income Tax Officer become judicial proceedings for the purpose of Sec- tion 193 IPC, and since they are classed under the first paragraph of the said section, they attract the protection of Section 195(1)(b) CrPC. In our opinion, there is considerable force in this argument, and, on the whole, we are inclined to prefer the construc- tion suggested by Mr Desai to that pressed before us by the learned Additional Solicitor-General.

xxxxxxxxxx 16……There can be little doubt that if a person of- fers an insult to a public servant sitting in a judicial proceeding, or causes interruption to him while he

5 is so sitting at any stage of the judicial proceeding, the complaint has to proceed from the public ser- vant himself; that is the effect of Section l95(1)(b) CrPC.”

7. The argument that the complaint was required to be filed

under Section 340 Cr.P.C. before the appellate tribunal and not

before the magistrate having jurisdiction is considered frivolous

and is rejected.

8. The order of the High Court is, therefore, held to be

unsustainable and is set aside.

9. The appeal is allowed.

………………………………….J. (Ranjan Gogoi)

.……….………………………..J. (Navin Sinha)

New Delhi, August 31, 2017

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