Find a Lawyer

Criminal Miscellaneous Application No. 34 of 1977, decided on15th March, 1978.

-----S. 561-A read with S. 195-Quasbment of proceedings-Process issued against petitioners by a Magistrate under Ss. 182 & 167, P.P.C. on charge of having process issued against respondents on false accusations-Contention that proceedings not competent on complaint of aggrieved person except on complaint in writing of public servant concerned-Held, correct and proceeding quashed in circumstances-Penal Code (XLV of 1860), Ss. 182 & 167.

Syed Madad Ali Shah for Applicant No. 1.

Memon Azizur Rehman for Respondent No. 2.

Nemo for the State.

Date of hearing : 15th March, 1978.

This petition under section 561-A, Cr. P. C. arises under the follow ing circumstances:

Petitioner Akbar Hussain had filed a complaint for action under section 107, Cr. P. C. in the Court of Addl. District Magistrate, Hyder abad, against respondents Abdul Rehman and others. The complaint/ application was forwarded to City Mukhtiarkar who issued order under section 112, Cr. P. C. against the respondent. The respondents in the application were shown to be residents of Kacchi Para near Phuleli bridge, Hyderabad. They, however, actually resided at Gharibabad, Nawabshah. The petitioner No. 2 who was a Police Constable posted in the Court of City Mukhtiarkar and F. C. M. Hyderabad for service of process, accompanied applicant Akbar Hussain and actually served the respondents at Nawabshah but in his endorsement on the notices he made a false statement that service had been effected at Phuleli, Hyderabad. The respondent feeling aggrieved filed a complaint in the Court of S.D.M., Nawabshah, for offences under sections 166, 167, 177, 182 and 197 read with section 120-B, P.P.C. A preliminary enquiry was held by S.D.M., Nawabshah who subsequently passed an order issuing process for offences under sections 167 and 182, P.P.C. against the accused persons. The accused/petitioners have preferred this application for quashment against that order of S.D.M. Nawabshah on the ground that for such offences a complaint by the person aggrieved was not competent as these were the offences committed against public justice. It has been pointed out by the learned counsel on behalf of the petitioners that under section 195, Cr. P. C. prosecution for offence under section 182, P.P.C. cannot be entertained by any Court except on the complaint in writing of the public servant concerned. 1t has also been pointed out regarding the offence under section 167 that the facts constituting the said offence in effect constitute an offence under section 193, P. P. C. because the notices served under section 112, Cr. P. C. formed part of the proceedings of a Court, and had actually been produced in the course of the judicial proceedings. The learned counsel for the petitioner has cited A I R 1945 Mad. 9, that making a false return of a warrant of execution constitutes an offence under section 193, Penal Code though the offence) may also come under section 167, Penal Code and therefore the comp laint by the Court concerned is necessary and a private complaint is not maintainable.

2. Mr. Azizur Rehman appearing on behalf of the respondent No. 2 frankly concedes the position of law but states that the accused/petitioners have acted to his prejudice and prepared a false record to misguide the Court and such cutprits could not go unpunished. However, the proper procedure for him is to move the Court concerned by an applica tion and it is then for the Court to determine whether under the circumstances it would be expedient in the interests of justice to file a prosecution.

3. In the result the petition is allowed and the proceedings of the criminal complaint are quashed.

Petition allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.