In the present case, complaint is filed praying that the
accused be prosecuted and punished for the offence punishable under
Section 211 of the Indian Penal Code on 19th March, 2011 and prior to
that the complainant was arrested on 16th December, 2010 on the basis
of the report lodged against him, the complainant was produced before
the Magistrate on 17th December, 2010, the chargesheet was filed
before the Court on 27th January, 2011 and the police submitted the
proposal on the basis of which the complainant was discharged on 27th
January, 2011. Thus, in the present case, the complaint is filed after
the proceedings in relation to which the offence is alleged to have been
committed, culminated.
In the judgment given in the case of M.L. Sethi vs. R.P.
Kapur and another (cited supra), in paragraph No.13 it is laid down
as follows:
“13. In this case, as we have already indicated when
enumerating the facts, the complaint of which cognizance
was taken by the Judicial Magistrate at Chandigarh was filed
on April 11, 1959, and at that stage, the only proceeding
that was going on was investigation by the Police on the basis
of the First Information Report lodged by the appellant before
the InspectorGeneral of Police on December 10, 1958. There
is no mention at all that there was at that stage any
proceeding in any Court in respect of that F.I.R. When
examining the question whether there is any proceeding in
any Court, there are three situations that can be envisaged.
One is that there may be no proceeding in any Court at all.
The second is that a proceeding in a Court may actually be
pending at the point of time when cognizance is sought to be
taken of the offence under S. 211 I.P.C. The third is that,
though there may be no proceeding pending in any Court in
which or in relation to which the offence under S. 211 I.P.C.
could have been committed, there may have been a
proceeding which had already concluded and the offence
under S. 211 may be alleged to have been committed in, or
in relation to, that proceeding. It seems to us that in both the
latter two circumstances envisaged above, the bar to taking
cognizance under S. 195(1)(b) would come into operation. If
there be a proceeding actually pending in any Court and the
offence under S. 211 I.P.C. is alleged to have been committed
in relation to that proceeding, S. 195(1)(b) would clearly
apply. Even if there be a case where there was, at one stage, a
proceeding in any Court which may have concluded by the
time the question of applying the provisions of S. 195(1)(b)
arises, the bar under that provision would apply if it is
alleged that the offence under S. 211, I.P.C., was committed
in or in relation to, that proceeding. The fact that the
proceeding had concluded would be immaterial, because S.
195(1)(b) does not require that the proceeding in any Court
must actually be pending at the time when the question of
applying this bar arises.”
11. The point which falls for consideration is covered by the
proposition laid down in the judgment given in the case of M.L. Sethi
vs. R.P. Kapur and another (cited supra). The applicant alleges that
nonapplicant committed offence under Section 211 of Indian Penal
Code by giving false statement and the applicant was arrested and
produced before Court. Thus, the proceedings were taken up in Court,
before the applicant filed the complaint. Therefore, the bar created by
Section 195(1)(b) of the Code of Criminal Procedure will be attracted
and the learned Magistrate could not have taken cognizance of the
complaint praying that the accused be convicted for the offence under
Section 211 of the Indian Penal Code, on the complaint of the
applicant. The order passed by the Sessions Court on this aspect is
proper and does not require any interference.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO.162 OF 2012
Shri Harishchandra s/o Nagorao Mohod,
VERSUS
Shri Kishor s/o Vitthalrao Padole,
CORAM : Z.A. HAQ, J.
DATE OF PRONOUNCING THE JUDGMENT : 27-04-2016
Citation: 2016 ALLMR(CRI)2609
Print Page
accused be prosecuted and punished for the offence punishable under
Section 211 of the Indian Penal Code on 19th March, 2011 and prior to
that the complainant was arrested on 16th December, 2010 on the basis
of the report lodged against him, the complainant was produced before
the Magistrate on 17th December, 2010, the chargesheet was filed
before the Court on 27th January, 2011 and the police submitted the
proposal on the basis of which the complainant was discharged on 27th
January, 2011. Thus, in the present case, the complaint is filed after
the proceedings in relation to which the offence is alleged to have been
committed, culminated.
In the judgment given in the case of M.L. Sethi vs. R.P.
Kapur and another (cited supra), in paragraph No.13 it is laid down
as follows:
“13. In this case, as we have already indicated when
enumerating the facts, the complaint of which cognizance
was taken by the Judicial Magistrate at Chandigarh was filed
on April 11, 1959, and at that stage, the only proceeding
that was going on was investigation by the Police on the basis
of the First Information Report lodged by the appellant before
the InspectorGeneral of Police on December 10, 1958. There
is no mention at all that there was at that stage any
proceeding in any Court in respect of that F.I.R. When
examining the question whether there is any proceeding in
any Court, there are three situations that can be envisaged.
One is that there may be no proceeding in any Court at all.
The second is that a proceeding in a Court may actually be
pending at the point of time when cognizance is sought to be
taken of the offence under S. 211 I.P.C. The third is that,
though there may be no proceeding pending in any Court in
which or in relation to which the offence under S. 211 I.P.C.
could have been committed, there may have been a
proceeding which had already concluded and the offence
under S. 211 may be alleged to have been committed in, or
in relation to, that proceeding. It seems to us that in both the
latter two circumstances envisaged above, the bar to taking
cognizance under S. 195(1)(b) would come into operation. If
there be a proceeding actually pending in any Court and the
offence under S. 211 I.P.C. is alleged to have been committed
in relation to that proceeding, S. 195(1)(b) would clearly
apply. Even if there be a case where there was, at one stage, a
proceeding in any Court which may have concluded by the
time the question of applying the provisions of S. 195(1)(b)
arises, the bar under that provision would apply if it is
alleged that the offence under S. 211, I.P.C., was committed
in or in relation to, that proceeding. The fact that the
proceeding had concluded would be immaterial, because S.
195(1)(b) does not require that the proceeding in any Court
must actually be pending at the time when the question of
applying this bar arises.”
11. The point which falls for consideration is covered by the
proposition laid down in the judgment given in the case of M.L. Sethi
vs. R.P. Kapur and another (cited supra). The applicant alleges that
nonapplicant committed offence under Section 211 of Indian Penal
Code by giving false statement and the applicant was arrested and
produced before Court. Thus, the proceedings were taken up in Court,
before the applicant filed the complaint. Therefore, the bar created by
Section 195(1)(b) of the Code of Criminal Procedure will be attracted
and the learned Magistrate could not have taken cognizance of the
complaint praying that the accused be convicted for the offence under
Section 211 of the Indian Penal Code, on the complaint of the
applicant. The order passed by the Sessions Court on this aspect is
proper and does not require any interference.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO.162 OF 2012
Shri Harishchandra s/o Nagorao Mohod,
VERSUS
Shri Kishor s/o Vitthalrao Padole,
CORAM : Z.A. HAQ, J.
DATE OF PRONOUNCING THE JUDGMENT : 27-04-2016
Citation: 2016 ALLMR(CRI)2609
