Monday, 12 October 2015

Whether accused can be discharged as per s 245(2) of crpc for offences for which sanction for prosecution is not required?

Even in the citation quoted by the trial Court, the very same proposition has been laid down i.e. 1992 (1) M.W.N. 283.
"The principles enunciated by the Supreme Court in catena of cases show, that where an accused commits some offences which are separate and distinct from that contained underSection 195Cr.P.C. the said section will affect only the offences mentioned therein, unless such offences form an integral part, so as to amount to offences committed as a part of the same transaction, in which case, the other offences also would fall within the ambit of Section 195 of the Code of Criminal Procedure. This legal position has been made clear by the Apex Court inState of U.P. v. Suresh Charar Srivastava, 1985 Law Weekly (Crl) 5 : (1985 Cri LJ 926)".
8. Therefore, in the light of the above guidelines enunciated by the Supreme Court and in view of the earlier observation made by a Division Bench of this Court, in the Writ Petitions, offences under Sections 199 and 200I.P.C. as mentioned in the private complaint related to separate transaction which are separable from the main offences alleged to have been committed by the respondent/accused in some other transaction and as such, I am of the view, that the embargo under Section 195Cr.P.C. would not be applicable for other offences except 199 and 200, I.P.C. In these circumstances, the order passed by the lower Court discharging accused/respondent in respect of all the offences suffers from infirmity and therefore, it is liable to be set aside and remitted back to the trial Court to go on with trial in respect of other offences.
Madras High Court
Ayyappan vs Krishnapillai on 30 April, 1997
Bench: M Karpagavinayagam
Citation; 1997CRLJ3692 Mad


1. The order in Crl.M.P. No. 548 of 1993 in C.C. No. 46/91 on the file of Chief Judicial Magistrate, Nagercoil Kanyakumari District on the application filed by the respondent/accused disharging him is challenged in this revision before this Court by the petitioner/ complainant.
2. The petitioner filed a private complaint against the respondent-Inspector of Police for the offences under Sections 166, 167, 199, 200, 213, 344, 345, 347, 379, 380, 387, 323, 448, 506(2), I.P.C. read with 34, I.P.C. This complaint was taken on file by the lower Court on 26-4-1991. The contents of the complaint is that on 9-7-1990, the accused/respondent forcibly took the petitioner from his jewellery shop and detained him in the police station for several days and after threatening the complainant and his relatives, he forcibly relieved all the jewels from him and thereby he has committed the above referred offences.
2A. Prior to the filing of this private complaint on behalf of the petitioner Writ Petitions were filed before this Court in W.P. No. 11212 and 12229 of 1990. In that Writ Petitions, containing false allegations the respondent/accused filed a counter-affidavit. Therefore, the petitioner during the pendency of the Writ Petitions filed the above referred private complaint, for the offences for having taken forcibly and relieved of jewels from him after illegal detention for a number of days in the police station and for the false affidavit filed before this Court. The above Writ Petitions came up for final disposal before this Court. When this Court was brought to the notice of she pendency of the private complaint against the respondent/accused, the Division Bench observed in the order in the Writ Petitions that the question of illegal detention of the detenu by the respondent, Inspector of Police and the various other offences mentioned in the complaint may have to be probed into during trial and on that basis, the Division Bench dismissed the Writ Petitions and directed the trial Magistrate to dispose of the above referred private complaint as early as possible. This order was passed on 29-4-1991.
3. Despite this order, the accused/respondent instead of facing the trial before the Court, even before the commencement of trial filed a petition under Section 245(2)Cr.P.C. to discharge him mainly on the ground that for the offences under Sections 199 and 200I.P.C. only the concerned Court as per Section 195Cr.P.C. could file the complaint and then alone the Criminal Court has got powers to take cognisance of the said offences and therefore, he has to be discharged in respect of the above offences including all the other offences. It was also further contended thatSection 195Cr.P.C. was not complied with.
4. Though this application was contested by the petitioner by stating that earlier in the Writ Petition, the Division Bench observed that the petitioner/respondent has to necessarily undergo trial in order to give an opportunity for the complainant to prove the offences. Without considering the valid objections, the lower Court discharged the respondent/accused merely on the basis that under Section 195, Cr. P.C. the Court cannot take cognisance in respect of the offences underSections 199 and 200I.P.C. The learned Magistrate came to the above conclusion on the strength of the decision reported in 1992 Mad WN (Crl) 286-Balachanderraj v. C. R. Elango, The trial Court while concluding that S. 195 Cr.P.C. is a bar, he observed that the bar will be applicable to the other offences also as those offences cannot be spilt up. The relevant observation in this citation referred to by the trial Court is as follows :-
"When a complaint is made there must be no splitting up of the fact and the Court is not entitled to disregard some of the facts and try or convict an accused person for an offence which the remaining facts disclosed .... But the Court himself consider the facts as a whole and all these for which and disclosed for which a special complaint is necessary under the provision of S. 195 the Court cannot take cognizance of the case at all, unless that Special complaint has been filed" ........... An objection as to the jurisdiction of the Magistrate to try the case on the ground of want of complaint as required by this Section goes to the root of the case and should not be reserved for consideration till the entire evidence is recorded. It must be dealt with before proceeding further after taking such evidence as may be necessary for its decision".
5. In his revision, the counsel for the petitioner would vehemently contend that Sections 199 and200I.P.C. is relating to the false affidavit filed before the High Court and therefore, these offences are separable from the main offences alleged in the complaint and therefore, the Magistrate ought not to have discharged the accused/respondent in respect of other offences as they relate to separate transaction by which the offences have been committed by the petitioner being illegally detained and the jewels were relieved at the police station. He would also submit that the cognizance for Ss. 199 and 200, I.P.C. must be valid. Though in the High Court Order in the Writ Petitions, it is observed that it would be too premature to hold that the respondent, Inspector of police had committed offences punishable under Sections 199 and 200I.P.C. and that this question would also be kept open for consideration by the trial Magistrate. Therefore, it is submitted by the learned counsel for the petitioner that the discharge in respect of the offence under Sections 199 and 200I.P.C. may be a valid one but the finding that has been given by the trial Court even without taking any evidence that the respondent/accused is liable to be discharged in respect of other offences also. To substantiate this submission, the learned counsel for the petitioner cited the following decisions. The first case is 1966 Law Weekly (Cri) 193 : (1967 Cri LJ 1528) Mani In re and in which it has been held as follows (at page 1530 of Cri LJ) :-
"Section 195I.P.C. does not bar the trial of an accused for a distinct offence disclosed by the same facts and which is not included within the ambit of that Section. The offences underSections 147148457427 and 435I.P.C. are distinct offences from the alleged violation of the prohibitory order. Even on the footing that an offence under Section 188I.P.C. had been committed, the want of complaint by the Tahsildar relating to that would not bar the Magistrate from taking cognizance of the other offences, which are distinct and separate offences, and, in fact, graver offences. Those offences would stand independently. Whether there had been an order under Section 144, Crl.P.C. or not."
6. The next decision is , Durgha Charan v. State of Orissa. It has been held in that decision as follows (at page 1495 of Cri LJ) :-
"We have expressed the view that Section 195 Cr.P.C. does not bar the trial of an accused person for a distinct offence disclosed by the same or slightly different set of facts and which is not included within the ambit of the Section, but we must point out that the provisions of Section 195 cannot be evaded by resorting to devices or camouflage".
7. Even in the citation quoted by the trial Court, the very same proposition has been laid down i.e. 1992 (1) M.W.N. 283.
"The principles enunciated by the Supreme Court in catena of cases show, that where an accused commits some offences which are separate and distinct from that contained underSection 195Cr.P.C. the said section will affect only the offences mentioned therein, unless such offences form an integral part, so as to amount to offences committed as a part of the same transaction, in which case, the other offences also would fall within the ambit of Section 195 of the Code of Criminal Procedure. This legal position has been made clear by the Apex Court inState of U.P. v. Suresh Charar Srivastava, 1985 Law Weekly (Crl) 5 : (1985 Cri LJ 926)".
8. Therefore, in the light of the above guidelines enunciated by the Supreme Court and in view of the earlier observation made by a Division Bench of this Court, in the Writ Petitions, offences under Sections 199 and 200I.P.C. as mentioned in the private complaint related to separate transaction which are separable from the main offences alleged to have been committed by the respondent/accused in some other transaction and as such, I am of the view, that the embargo under Section 195Cr.P.C. would not be applicable for other offences except 199 and 200, I.P.C. In these circumstances, the order passed by the lower Court discharging accused/respondent in respect of all the offences suffers from infirmity and therefore, it is liable to be set aside and remitted back to the trial Court to go on with trial in respect of other offences. Accordingly, the impugned order is set aside and the case is remitted back to the trial Court to proceed with the trial against the respondent/accused and others in accordance with law in respect of the remaining offences as referred to above.
9. In the result, Crl.R.C. No. 662 of 1993 is allowed.
10. Petition allowed.
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