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IN THE HIGH COURT OF ALLAHABAD
MANJU RANI CHAUHAN, J.
Shiv Gopal Jaiswal - Applicant
Versus
State of U.P. and Another - Opposite Party
Application U/S 482 No. 6034 of 2023
Decided On : 05-04-2023
Criminal Procedure Code, 1973 - Section 482, 195, (1)(a), 82, 2(d), 154 – Indian Penal Code, 1860 - Section 420, 406, 174-A, 172 to 188 - Non-bailable warrant has been issued - Quash summoning order - Application filed to quash impugned summoning order – Persons who seeks equitable reliefs, should come before court with clean hands. [Para 9]
Finding of the Court: Public interest demands that criminal justice should be swift and sure and court should not let guilty scot free only on basis of mere some technicalities - Even otherwise basic principle of law is that one, who seeks equity should do equity - Persons, who seeks equitable reliefs, should come before court with clean hands - Accused has no right to choose mode by which he is to be prosecuted specially in circumstances when he has failed to comply with orders of court and is prolonging matter by filing one case after another - Court also finds that an FIR has been lodged after orders of concerned Magistrate when accused failed to appear before court despite notice to him as required in case wherein FIR was earlier registered against him.
Result: Application dismissed.
JUDGMENT :
[Manju Rani Chauhan, J.]
1. Heard Mr. Shachindra Kumar Mishra, learned counsel for the applicant and Mr. Amit Singh Chauhan, learned AGA for the State.
2. The present application under Section 482 Cr.P.C. has been filed to quash the impugned summoning order dated 04.06.2022 issued by the Court of Judicial Magistrate/FTC, District Basti in Case No. 11656 of 2022 arising out of Case Crime No. 0092 of 2022, under section 174-A IPC, Police Station Walterganj, District Basti as well as entire proceeding pending in the court of Judicial Magistrate/FTC, District Basti and also quash the charge sheet dated 28.04.2022.
3. Brief facts of the case are that earlier an FIR was lodged against the applicant which was registered as Case Crime No. 151 of 2021, under section 420, 406 IPC in which investigation is going on. As the applicant was absconding, therefore, non-bailable warrant has been issued against him on 28.03.2022 and proceeding u/s 82 Cr.P.C. was initiated. The notice about the aforesaid proceedings was affixed at the house of the applicant as well as published in duly circulated newspaper namely Dainik Jagran. Despite of the aforesaid, the applicant did not appear before the concerned court, therefore, seeing that the applicant is avoiding the order of the Court, he was declared, absconder and as per orders of the concerned Magistrate, the present FIR was lodged by concerned Sub Inspector. After investigation charge sheet was submitted and cognizance has been taken against the applicant. Hence, the present petition has been filed, challenging the impugned order dated 04.06.2022.
4. The learned counsel for the applicant submits that opposite party no. 2 had lodged the FIR against the applicant under section 174-A IPC in Case Crime No. 0092 of 2022, in which after investigation charge sheet has been submitted on 28.04.2022, on which the concerned Court has taken cognizance while as per provision of Section 195 Cr.P.C. for the offences under Sections 172 to 188 Cr.P.C. cognizance can be taken by the court only on a complaint made by a public servant, therefore, he submits that the cognizance taken by the court concerned is illegal and is liable to be quashed. He has further submitted that a conjoint reading of section 174A I.P.C. and section 195(1)(a) Cr.P.C. reveals that only a complaint u/s 174-A can be filed in respect of the offence u/s 174-A I.P.C. and that too by a public servant. As such, lodging of the FIR by any person is clearly barred by the provisions of section 195(1)(a) Cr.P.C. It has been further contended that the police in this case, without keeping in view this aspect, mechanically submitted charge sheet against the applicant and the learned Magistrate without application of judicial mind, took cognizance on the said charge-sheet by just filling up the blanks. On the aforesaid grounds, it has been prayed that the charge-sheet, the cognizance order and the entire consequential proceedings in pursuance of the charge sheet, pending against the applicant be quashed. He has also placed reliance upon the order passed in Application u/s 482 No. 394 of 2020 dated 07.01.2020 passed by coordinate Bench of this Court.
5. Learned AGA on the other hand submits that since the applicant has absconded from the judicial proceeding and he was declared absconder that is why an FIR was lodged, in which the concerned court has taken cognizance, therefore, no ground for quashing the proceeding is made out.
6. Before considering the submission as made by counsel for the parties it would be appropriate to place extract of few provisions:-
Section 195 Cr.P.C. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
1 [Subs. By Act 2 of 2006, sec3, for “except on the complai
As per Section 154 of Code of Criminal Procedure, information in cognizable cases has to be given by any person to set law into motion.
The validity of the proclamation of a person as a proclaimed offender and the jurisdiction to register an FIR for specific offences under the IPC were central legal points established in the judgment....
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