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PETITIONER: SUBHASH CHANDRA

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH & ORS.  C

DATE OF JUDGMENT:       12/01/1999

BENCH: S.S.Ahmad, D.P.Wadhwa

JUDGMENT:

D E R

     .   The dispute between the petitioner and  respondent Nos.   3  to  6  dates  back to 10th  of  March  1998,  when respondents  3-6 are alleged to have forcibly taken-away 350 bags  of potatoes valued at more than Rupees one lakh,  from the  fields of the petitioner, by loading the consignment in their  tractor-trolley.  In order to prevent the  petitioner from  lodging the First Information Report with the  Police, respondents  3-6 took the petitioner to their residence  and allegedly  assaulted him.  On the next day, namely, on  11th March, 1998, the petitioner informed the Sr.  Superintendent of  Police, Farrukhabad, about the above incident through  a fax message.

     In another incident, which is the incident involved in this  case, respondents 3-6 assaulted the petitioner on 29th March,  1998  at 11 A.M., Rs.500/- which the petitioner  had with  him at that time was taken-away by respondents 3-6 and they  also  badly abused the petitioner.  The  incident  was allegedly  witnessed by Ram Niwas and Siya Ram.   Petitioner immediately  went to the Police Station to lodge the  report but no action was taken.  Consequently, the petitioner filed a  complaint  in  the court of  Chief  Judicial  Magistrate, Farrukhabad,  against respondents 3-6 on 2nd April, 1998  in respect  of  the  incident of 29th March, 1998.   While  the application  was  pending in the court, the  petitioner  was advised  that  in  respect of the incident in  question  the court  competent  to  take action was the court  of  Special Sessions  Judge,  (DAA), Farrukhabad, and not the  court  of Chief  Judicial  Magistrate.   Consequently, on  24th  June, 1998,  petitioner moved an application under Section 156 (3) of  the  Criminal  Procedure Code in the  court  of  Special Sessions  Judge (DAA), Farrukhabad.  On the direction of the Special  Sessions  Judge (DAA), Farrukhabad, on 6.7.1998,  a case  was registered under Section 394/504/506 IPC at Police Station,  Farrukhabad, against respondents 3-6 as crime case No.  541/98.  The order dated 6.7.1998, by which the learned Special  Sessions  Judge  (DAA), Farrukhabad,  had  directed Police  Station  House  Officer to register a  case  against respondents  3-6,  was  challenged  by  the  latter  in  the Allahabad   High   Court  through   a   petition   (Criminal Miscellaneous  Application No.  2527 of 1998) under  Section 482  Cr.P.C.   On this petition, the High Court  passed  the following order dated 23.7.1998 :

     Heard  the applicants counsel that in respect of the

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same  incident  a criminal complaint has already been  filed against  the applicants and the same is pending.  During the pendency  of the same complaint, complainant Subhash Chandra also  filed  application U/S 156(3) Cr.P.C.  before  another court,   i.e.    the  court  of  Special   Judge   (D.A.A.), Farrukhabad,  by  concealing  the fact that he  has  already moved  an  application  before the Court of  Chief  Judicial Magistrate,  Farrukhabad  for necessary action by filing  an application  under  Sec.   156(3) Cr.P.C.   and  the  C.J.M. refused  to  order investigation.  It is  further  contended that  the  local police is inimical to the applicants.   The applicants  have  filed  writ petition  against  the  police authorities  as  well as contempt petition.  In  short,  the argument  of the learned counsel is that the complainant  by concealing  material  facts before the Special Judge  (DAA), Farrukhabad has succeeded in procuring a favourable order on 6.7.1998,  on  his  application  moved  under  Sec.   156(3) Cr.P.C.   In the circumstances, this petition is disposed of finally  with  the  observation that the applicants,  if  so advised, may move before the Special Judge (SAA) Farrukhabad inviting  his attention to the aforestated objection and  if such  an  objection is filed, the same shall be  decided  by Special Judge (DAA) Farrukhabad in accordance with law after getting opportunity of hearing to both the sides.

     The  operation  of  the order dated 6.7.98  passed  by Special  Judge  (DAA) Farrukhabad shall remain stayed for  a period  of 10 days in order to enable the applicants to file suitable  objection  and if such objections are  filed,  the order  shall  remain stayed until the objection is  disposed of.

     A certified copy of this order be given to the learned counsel  for  the  petitioners on payment of  usual  charges within 48 hours.

     When  the matter was taken up by the Special  Sessions Judge,  Farrukhabad, on 17.11.1998, he recalled his  earlier order  dated  6.7.1998  and issued a  notice  requiring  the petitioner to show cause why action be not taken against him for  concealing  the  fact  that  he  had  earlier  filed  a complaint  in  the court of Chief Judicial Magistrate  which was  not  mentioned  by him in his complaint  under  Section 156(3)  Cr.P.C.  Petitioner filed his objections to the show cause   notice,  but  the   Special  Sessions  Judge  (DAA), Farrukhabad,   by   order   dated  14/15.1.1999,   initiated proceedings  against  the  petitioner for an  offence  under Section  182  of  the Indian Penal Code,  allegedly  on  the ground  that the petitioner had concealed the material facts from  the  court and had not mentioned that he  had  earlier filed  an application in respect of the same incident before the  Chief Judicial Magistrate Farrukhabad.  This order  was challenged  by  the  petitioner  before the  High  Court  in Criminal  Misc.   Writ Petition No.  2123/99 which has  been disposed  of by the impugned judgment dated 21.4.1999.   The High  Court disposed of the writ petition with the following operative order :

     This  writ petition is disposed of with the direction that  a  complaint shall be drafted and lodged  against  the petitioner in accordance with Section 340 Cr.P.C.  and other formalities  of  law  under Section 340 Cr.P.C.   read  with Section  195 Cr.P.C.  shall be complied with.  Orders passed on merits u/s 340 Cr.P.C.  is confirmed.

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     With  these directions, the writ petition is  disposed of.   Petitioner  shall  appear  before  the  Special  Judge (D.A.A.), Farrukhabad on 10.05.1999.

     Learned  counsel for the petitioner has contended that the  High Court could not have directed the Special Sessions Judge,  Farrukhabad, to lodge a complaint under Section  340 Cr.P.C.  read with Section 195 Cr.P.C.  at that stage as the complaint  was  still  pending  before  the  Chief  Judicial Magistrate  while  the complaint filed by the petitioner  in the  court  of  Special Sessions Judge  (DAA),  Farrukhabad, under  Section 156(3) Cr.P.C.  had also not been disposed of finally on merits.

     Learned   counsel   appearing  on    behalf   of   the respondents, on the other hand, has contended that there was no  dispute  with regard to the fact that the fact that  the petitioner  had  earlier filed a complaint in the  court  of Chief Judicial Magistrate was not mentioned in the complaint filed  under Section 156(3) Cr.P.C.  in the court of Special Sessions  Judge (DAA), Farrukhabad, and that this vital fact had  been  concealed from that court.  That being so, it  is contended  by learned counsel for the respondents, that  the petitioner  could  be legally proceeded against in terms  of the  directions  issued by the High Court.  It is  contended that  in  these circumstances the learned  Special  Sessions Judge  (DAA),  Farrukhabad,  would  be  fully  justified  in lodging  the complaint under Section 340 Cr.P.C.  read  with Section 195 Cr.P.C.

     After having heard learned counsel for the parties, we are  of  the  view that the Special  Sessions  Judge  (DAA), Farrukhabad,  as  also the High Court have acted hastily  in the matter.  Mere non-mention of the complaint already filed in  the court of Chief Judicial Magistrate, in the  petition filed  under  Section  156(3) Cr.P.C.   before  the  Special Sessions Judge (DAA), Farrukhabad, would not be enough.

     There are many ingredients set out in Section 182 IPC. Unless  all the ingredients are established by evidence, the offence  cannot be treated to have been committed.  In order to  ascertain  whether  the  petitioner  had  committed  any offence  under Section 182 IPC, it is necessary to find  out whether  all  the ingredients constituting an offence  under that  Section  have been proved or not.  The petitioner  had only  filed a complaint under Section 156(3) Cr.P.C., before the  court of Special Sessions Judge (DAA), Farrukhabad.  It is  still  to  be investigated and found out by  that  court whether the complaint lodged before that court was false and had  been made with the necessary intention or knowledge  to induce the court to exercise its lawful power so as to cause injury  to  respondents  3-6.  Once  those  ingredients  are established  and  the charge is found to have  been  proved, then alone the court can take cognizance of that offence and proceed  in  the  manner directed by the High Court  by  the impugned  judgment.  But the stage at which such  directions have been issued is, in our opinion, premature.

     Consequently,  this  petition is disposed of  and  the order dated 15.1.1999 passed by Special Sessions Judge (DAA) Farrukhabad,  as  also order dated 21.4.1999 passed  by  the High  Court  are  set aside, with the observation  that  the Special  Sessions Judge (DAA), Farrukhabad, shall proceed to

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dispose  of  the complaint under Section 156(3) Cr.P.C.   in accordance  with  law and if it is found that the  complaint was  false  and  has  been  filed  with  the  knowledge  and intention set out in Section 182 IPC, the court will proceed further in the manner indicated by the High Court.