Whether an FIR can be registered against a person accused of offence punishable under section 174-A IPC?
Sachin Kaushik, Advocate
Punjab & Haryana High Court, Chandigarh
Date : 16/11/2019
Whether an FIR can be registered against a person accused of offence punishable under section 174-A IPC?What prodded me to write this Article is that in a slew of orders passed by the subordinate courts of Judicial Magistrates, especially in Haryana state, it is usually observed as a general practice that the said courts after declaring the accused a proclaimed offender or proclaimed person under section 82 of Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC) direct the SHO of concerned local police station having jurisdiction to register FIR under section 174-A of Indian Penal Code, 1860 (hereinafter referred to as IPC) against the said proclaimed offender or person, as the case may be. This particular approach of the said courts is against the mandate of procedural law governing criminal trials i.e. CrPC and hence, such illegal orders are liable to be quashed on this score only. Needless to say that such type of orders passed by the said courts transcend the machinery of law and would impinge on the civilized society. Now, what makes us perturbed that if this is so, then, what would be the appropriate procedure to be followed by the subordinate courts while initiating legal action against such a person who disobeys the orders of the court and does not appear in response to proclamation u/s 82 CrPC? In order to demystify this, we must take aninsight into the provisions enumerated in the CrPC prescribing the procedure to be pursued while initiating a legal action against a person accused of offence punishable under section 174-A IPC. Section 195 is the only provision governing mode of procedure to be kept in mind and followed by the courts while taking cognizance of the said offence. The relevant portion of Section 195 is being reproduced below for the sake of expediency: 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 -
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or other public servant to whom he is administratively subordinate;
(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
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.The section falls under the "Chapter XIV - Conditions Requisite for Initiation of Proceedings" and starts with a headline `Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence'. The headline and explicit wordings of the section suggest that the ambit of this section is limited for the prosecution of prescribed offences i.e. Sections 172 to 188 IPC (both inclusive) and Sections 193 to 196 IPC (both inclusive) and Sections 199, 200, 205 to 211 IPC (both inclusive) and section 228 IPC and sections 463, 471, 475 or 476 IPC or their attempt or conspiracy or abetment and no court shall take cognizance of the said offences, except on the complaint in writing of the public servant concerned or court, as the case may be. From the bare and meticulous reading of the said section, it is conspicuous that no court can take cognizance of offence punishable under section 174-A IPC, except on the complaint in writing forwardedby the concerned court to the Magistrate having jurisdiction or to the Chief Judicial Magistrate, which implies that any direction or order by the Magistrate for registration of FIR u/s 174-A IPC is nothing but a flout. Two more points would bolster and espoused my stand on this particular issue are that firstly, it can be argued easily by the ones who lambasting that the meaning of the word `complaint' in section 195 can be liberally interpreted to the extent that an FIR can be regarded and treated as complaint in these circumstances. Yours truly answer to this flak is a big NO as the legislature never intended to do so. The obvious reason is that the object of imposing this limitation is to save the accused from vexatious or baseless prosecutions prompted by vindictive feelings and to adopt one of the principles of natural justice i.e. no one can be judge in his own cause (NemoJudex In CausaSua) and further, the section starts with words `No Court Shall Take Cognizance' and coupled with exception `except on the complaint in writing' which in itself shows the court can take cognizance only on the complaint in writing forwarded to it. Moreover, section 2(d) of CrPC postulates that complaint means any allegation made to a Magistrate and the word complaint used in section 195 also entails the same meaning. Secondly, one can easily say that the particular provision was inserted in the code in the year 1973, but, section 174-A was incorporated in IPC by way of amendment in year 2006 and the legislature did not amend section 195 corresponding to that section and therefore, section 195 is not applicable on section 174-A IPC. This argument is absolutely fallacious and is superfluous as had it been the intention of the legislature to make section 195 CrPC not applicable on section 174-A IPC, then, it would have amended section 195 to that extent and carved out an exception, but, this has not been done so and moreover, it is trite law that the legislature is presumed to know the existing laws. Further, section 195 CrPC applies to offences punishable for contempt of lawful authority of public servants and Section 174-A IPC also falls under the Chapter -X"Of Contempt of Lawful Authority of Public Servants", which makes the intention of the legislature to include section 174-A IPC in section 195 CrPC very apparent.
Epilogue"Justice must not only be done, but must be seen to be done". While rendering a decision and imparting justice, the above said golden lines of legal jurisprudence must be clung to the dogmatic and unprejudiced approach of the courts. It is a clarion call for adopting a just mechanism of law to mete out justice. Courts must adopt a procedure which can pave the way for both the parties to seek justice. With these remarkable words, it is, hereby, concluded that it is the bounden and unforgettable duty of the subordinate courts that the must adopt and follow the prescribed procedure before initiating proceedings against an accused so as to espouse the tenacious belief of people in the judicial system. Therefore, the prescribed procedure as enumerated in section 195 CrPC must be followed by the subordinate courts after declaring a person as proclaimed offender or proclaimed person, as the case may be.
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