Abdul Rehman &
Ors. Vs. K.M. Anees-ul-Haq
J U D G E M E N T
T.S. THAKUR, J.
short question that arises for determination in these appeals is whether the complaint
filed by the respondent-complainant against the appellants, alleging commission
of offences punishable under Sections 211, 500, 109, and 114 read with Section 34
of Indian Penal Code, 1860 was barred by the provisions of Section 195 of the Code
of Criminal Procedure, 1973.
The High Court of Delhi
has, while dismissing the petition under Section 482 of the Cr.P.C. filed by the
appellants held that the complaint in question is not barred and that the Metropolitan
Magistrate, Delhi, committed no error of law or jurisdiction in taking cognizance
of the offence punishable under Sections 211 and 500 IPC.
The appellants who happen
to be the accused persons in the complaint aforementioned have assailed the said
finding in the present appeal by special leave. The appellants contend that the
bar contained in Section 195 Cr.P.C. was attracted to the complaint filed by the
respondent inasmuch as the offence allegedly committed by them was "in
relation to the proceedings" in the court which the Respondent-complainant
had approached, for the grant of bail and in which the court concerned had
granted the bail prayed for by him.
What is the true purport
of the expression "in relation to any proceedings in any Court" appearing
in Section 195(1)(b)(i) of the Code of Criminal Procedure, 1973 and in particular
whether the grant of bail to the respondent in connection with the FIR registered
against 2him would attract the bar contained in Section 195 Cr.P.C is all that falls
for determination. Before we advert to the provisions of Section 195 of the
Cr.P.C., we may briefly set out the facts in the backdrop.
Rehman lodged a complaint with the Crime against Women (CAW) Cell, Nanakpura, Moti
Bagh, New Delhi, accusing the Respondent-K.M. Anees-Ul-Haq and four others of commission
of an offence punishable under Section 406 read with Section 34 IPC and
Sections 3 and 4 of the Dowry Prohibition Act. The complainant's case is that
the accusations made by the appellant in the report lodged with the Women Cell were
totally false and fabricated.
In particular, allegations
regarding demand of dowry as a condition precedent for performance of Nikah between
the complainant's nephew and Ms Aliya-appellant No.3 in this appeal were also
false and unfounded.
It was on that premise
that the respondent filed a complaint alleging that the appellants had instituted
criminal proceedings against him without any basis and falsely charged him with
commission of offences knowing that there was no just or lawful ground for such
proceedings or charge and thereby committed offences punishable under Sections
211 and 500 read with Sections 109, 114 and 34 IPC.
Metropolitan Magistrate entertained the complaint, recorded statements of three
witnesses produced by the respondent and came to the conclusion that there was sufficient
material to show commission of offences punishable under Sections 211 and 500 IPC.
While doing so, the Magistrate placed reliance upon a decision of this Court in
M.L. Sethi v. R.P. Kapur [AIR 1967 SC 528] to hold that a complaint for commission
of an offence punishable under Section 211 IPC is maintainable even at the
stage of investigation into a First Information Report.
by the order passed by the Metropolitan Magistrate, the appellant preferred a Criminal
Revision before the Additional Sessions Judge, New Delhi, who dismissed the
same as barred by limitation. The appellant then preferred a petition under
Section 482 Cr.P.C. before the High Court of Delhi for quashing complaint
No.180/1 of 2002 pending before the Metropolitan Magistrate and all proceedings
The High Court has, as
mentioned above, dismissed the said petition holding that since no judicial
proceedings were pending in any Court at the time when the complaint under
Sections 211 and 500 IPC was filed by the respondent-complainant, the bar contained
in Section 195 Cr.P.C. was not attracted nor was there any illegality in the
order passed by the Metropolitan Magistrate summoning the appellants to face
have heard learned counsel for the parties at considerable length and perused
the order under challenge. Section 195 of the Cr.P.C. to the extent the same is
relevant for our purposes may be extracted at this stage:
for contempt of lawful authority of public servants, for offences against public
justice and for offences relating to documents given in evidence. - (1) No
Court shall take cognizance - xxx xxx xxx xxx xxx xxx (b)(i) of any offence
punishable under any of the following sections of the Indian Penal Code (45 of 1860),
namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both
inclusive) and 228, when such offence is alleged to have been committed in, or in
relation to, any proceeding in any court, or xxx xxx xxx xxx xxx xxx"
plain reading of the above would show that there is a legal bar to any Court taking
cognizance of offences punishable under Sections 193 to 196 (both inclusive),
199, 200, 205 to 211 (both inclusive) and 228 when such offence is alleged to
have been committed in, or in relation to, any proceeding in any Court except on
a complaint in writing, of that Court or by such officer of the Court as may be
authorised in that behalf, or by some other Court to which that Court is
That a complaint
alleging commission of an offence punishable under Section 211 IPC, "in or
in relation to any proceedings in any Court", is maintainable only at the instance
of that Court or by an officer of that Court authorized in writing for that
purpose or some other Court to which that Court is subordinate, is abundantly clear
from the language employed in the provision.
It is common ground that
the offence in the present case is not alleged to have been committed "in
any proceedings in any Court". That being so, the question is whether the
offence alleged against the appellants can be said to have been committed "in
relation to any proceedings in any Court".
is not in dispute that upon the filing of the complaint by the appellants with the
CAW Cell the respondent-complainant had sought an order of anticipatory bail from
the Additional Sessions Judge, Karkardooma, Delhi, nor is it disputed that an
order granting bail was indeed passed in favour of the respondent.
It is also not in
dispute that on completion of the investigation into the case lodged by the appellants
under Section 406 read with Sections 3 and 4 of Dowry Prohibition Act, a charge
sheet under Section 173 Cr.P.C. has already been filed before the Court
competent to try the said offences in which the respondents have been released
on regular bail on a sum of rupees ten thousand with one surety of the like
The filing of the
charge sheet, however, being an event subsequent to the taking of cognizance by
the Metropolitan Magistrate on the complaint filed by the
respondent-complainant, the same can have no relevance for determining whether
cognizance was properly taken.
The question all the same
would be whether the grant of anticipatory bail to the respondent by the Additional
Sessions Judge, Karkardooma Court, Delhi, would constitute judicial proceedings
and, if so, whether the offence allegedly committed by the appellants could be said
to have been committed in relation to any such proceedings.
question whether grant of bail would attract the bar contained in Section 195(1)(b)(i)
Cr.P.C. is no longer res integra. In Badri v. State [ILR (1963) 2 All 359] an offence
punishable under Section 211 IPC was alleged to have been committed by the
person making a false report against the complainant and others to the police.
It was held that the
said offence was committed in relation to the remand proceedings and the bail proceedings
which were subsequently taken before the Magistrate in connection with that
report to the police and, therefore, the case was governed by Section 195(1)(b)
Cr.P.C. and no cognizance could be taken except on a complaint by the Magistrate
under Section 195 read with Section 340 of the Cr.P.C.
The said decision came
up for consideration before a three-Judge Bench of this Court in M.L. Sethi v.
R.P. Kapur [AIR 1967 SC 528], but this Court left open the question 8whether remand
and bail proceedings before a Magistrate would constitute proceedings in a Court.
This Court observed: "We
do not consider it necessary to express any opinion whether the remand and bail
proceedings before the Magistrate could be held to be proceedings in a Court,
nor need we consider the question whether the charge of making of the false report
could be rightly held to be in relation to those proceedings. That aspect need
not detain us, because, in the case before us, the facts are different."
legal position regarding maintainability of a complaint under Section 211 IPC by
reference to a false complaint lodged before the police was nevertheless stated
in the following words: "Consequently, until some occasion arises for a Magistrate
to make a judicial order in connection with an investigation of a cognizable offence
by the police no question can arise of the Magistrate having the power of filing
a complaint under Section 195(1)(b), Cr.P.C.
In such circumstances,
if a private person, aggrieved by the information given to the police, files a complaint
for commission of an offence under Section 211, IPC, at any stage before a
judicial order has been made by a Magistrate, there can be no question, on the date
on which cognizance of that complaint is taken by the Court, of the provisions
of Section 195(1)(b) being attracted, because, on that date, there would be no proceeding
in any Court in existence in relation to which Section 211, IPC can be said to have
The mere fact that on
a report being made to the police of a cognizable offence, the proceedings must,
at some later stage, and in a judicial order by a Magistrate, cannot therefore,
stand in the way of a private complaint being filed and of cognizance being taken
by the Court on its basis."
question regarding bail proceedings before the Court being proceedings in a
Court within the meaning of Section 195(1)(b)(i) once again fell for
consideration before this Court in Kamlapati Trivedi v. State of West Bengal [1980
(2) SCC 91]. Kamlapati Trivedi had in that case filed a complaint under
Sections 147, 448 and 379 IPC against six persons including one Satya Narayan
Warrants were issued for
the arrest of the accused, all of whom surrendered before the Court of Sub-Divisional
Judicial Magistrate, Howrah, who passed an order releasing them on bail. In due
course the police completed the investigation and submitted a final report under
Section 173 Cr.P.C. stating that the complaint filed by Shri Trivedi was false.
The Magistrate agreed with the report and passed an order discharging the
Sometime after the discharge
order made by the Magistrate, Mr. Pathak, who was one of the accused persons of
committing the offence, filed a complaint before the SDJM accusing Kamalapati Trivedi
of the commission of offences punishable under Sections 211 and 182 IPC by
reasons of the latter having lodged with the police a false complaint. Trivedi filed
a petition before the High Court praying for quashing of the proceedings before
the Magistrate in view of the bar contained in Section 195(1)(b)(i) of the Code.
That prayer was
declined by the High Court who took the view that criminal proceedings before the
Court became a criminal proceeding only when cognizance was taken and not
before and since no proceeding was pending before the Court, the provisions of Section
195(1)(b)(i) were not attracted. In appeal, this Court formulated the following
"33. The points
requiring determination therefore are: "(a) Whether the SDJM acted as a Court
when he passed the orders dated May 6, 1970 and July 31, 1970 or any of them? (b)
If the answer to question (a) is in the affirmative, whether the offence under Section
211 of the Indian Penal Code attributed to Trivedi could be regarded as having been
committed in relation to the proceedings culminating in either or both of the said
the questions in the affirmative this Court observed: "60. As the order
releasing Trivedi on bail and the one ultimately discharging him of the offence
complained of amount to proceedings before a Court, all that remains to be seen
is whether the offence under Section 211 of the Indian Penal Code which is the subject-matter
of the complaint against Trivedi can be said to have been committed "in
relation to" those proceedings.
Both the orders
resulted directly from the information lodged by Trivedi with the police against
Pathak and in this situation there is no getting out of the conclusion that the
said offence must be regarded as one committed in relation to those proceedings.
This requirement of clause
(b) aforementioned is also therefore fully satisfied. 61. For the reasons stated,
I hold that the complaint against Trivedi is in respect of an offence alleged to
have been committed in relation to a proceeding in Court and that in taking cognizance
of it the SDJM acted in contravention of the bar contained in the said clause
(b), as there was no complaint in writing either of the SDJM or of a superior Court.
In the result, therefore, I accept the appeal and, setting aside the order of the
High Court, quash the proceedings taken by the SDJM against Trivedi."
above view was reiterated by this Court in State of Maharashtra v. SK. Bannu and
Shankar [(1980) 4 SCC 286]. The question in that case was whether prosecution for
an offence punishable under Section 476 IPC could be lodged at the instance of
a transferee Court in a case where the offence was committed in the other Court
which was earlier dealing with a different stage of the said proceedings.
question in the affirmative this Court held that the two proceedings namely one
in which the offence was committed and the other in which the final order is made
are, in substance, different stages of the same integrated judicial process and
that the offence committed in the earlier of the said proceedings can be said to
be an offence committed in relation to the proceedings before the Court to whom
the case was subsequently transferred or the Court which finally tried the
It was further held that
bail proceedings before the Magistrate were judicial proceedings even though such
proceedings had taken place at a stage when the offence against the accused, who
were bailed out, was under police investigation. This Court observed:-
being the real position, the bail proceedings before Shri Deshpande, and the subsequent
proceedings before Shri Karandikar commencing with the presentation of the
challan by the police for the prosecution of Deolal Kishan, could not be viewed
as distinct and different proceedings but as stages in and parts of the same judicial
Neither the time-lag
between the order of bail and the challan, nor the fact that on presentation of
the challan, the case was not marked to Shri Deshpande but was transferred
under Section 192 of the Code, to Shri Karandikar, would make any difference to
the earlier and subsequent proceedings being parts or stages of the same integral
Indeed, the commission
of the offences under Sections 205, 419, 465, 467 and 471 of the Penal Code,
came to light only when Shri Karandikar, on the basis of the forged surety bond
in question, attempted to procure the attendance of the accused.
If the earlier proceedings
before Shri Deshpande and the subsequent proceedings before Shri Karandikar
were stages in or parts of the one and the same process -- as we hold they were
-- then it logically follows that the aforesaid offences could be said to have
been committed "in or in relation to" the proceedings in the Court of
Shri Karandikar, also, for the purpose of taking action under Section 476 of
21. In the instant
case, it cannot be disputed that the bail proceedings before Shri Deshpande were
judicial proceedings before a court, although such proceedings took place at a stage
when the offence against the accused, who was bailed out, was under police investigation.
Thus, the facts in Nirmaljit Singh case (1973) 3 SCC 753 were materially different.
The ratio of that decision, therefore, has no application to the case before
the above principles to the case at hand, there is no gainsaying that the bail
proceedings conducted by the Court of Additional Sessions Judge, Karkardooma, Delhi,
in connection with the case which the appellants had lodged with CAW Cell were judicial
proceedings and the offence punishable under Section 211 IPC alleged to have been
committed by the appellants related to the said proceedings.
Such being the case the
bar contained in Section 195 of the Cr.P.C. was clearly attracted to the complaint
filed by the respondent. The Metropolitan Magistrate and the High Court had
both failed to notice the decision of this Court in Kamlapati Trivedi's and SK.
Bannu's cases (supra) and thereby fallen in error in holding that the complaint
filed by the respondent was maintainable.
The High Court
appears to have also failed to appreciate that the real question that fell for
consideration before it was whether the bail proceedings were tantamount to
judicial proceedings. That question had been left open by this Court in M.L
Sethi's case (supra) but was squarely answered in Kamalapati Trivedi's case
Once it is held that bail
proceedings amounted to judicial proceedings the same being anterior in point
of time to the taking of cognizance by the Metropolitan Magistrate, there is no
escape from the conclusion that any offence punishable under Section 211 IPC could
be taken cognizance of only at the instance of the Court in relation to whose
proceedings the same was committed or who finally dealt with that case.
noticed above, a charge-sheet has already been filed against the respondent by the
CAW Cell before the Competent Court. The respondent would, therefore, have a right
to move the said Court for filing a complaint against the appellants for an
offence punishable under Section 211 15IPC or any other offence committed in or
in relation to the said proceedings at the appropriate stage.
It goes without saying
that if an application is indeed made by the respondent to the Court concerned,
it is expected to pass appropriate orders on the same having regard to the provisions
of Section 340 of the Code. So long as the said proceedings are pending before the
competent Court it would neither be just nor proper nor even legally permissible
to allow parallel proceedings for prosecution of the appellants for the alleged
commission of offence punishable under Section 211 IPC.
was next argued by learned counsel for the respondent that while an offence under
Section 211 IPC cannot be taken cognizance of, there was no room for interfering
with the proceedings in so far as the same related to the commission of an offence
punishable under Section 500, since the bar of Section 195 Cr.P.C. was not attracted
to the proceedings under Section 500 IPC. The argument though attractive does
not stand closer scrutiny.
The substance of the
case set up by the respondent is that the allegations made in the complaint
lodged with CAW Cell accusing him of an offence punishable under Section 406 and
Sections 3 and 4 of the Dowry Prohibition Act were false which according to the
respondent tant amounts to commission of an offence punishable under Section
211 IPC apart from an offence punishable under Section 500 IPC. The factual
matrix for both the offences is however one and the same.
Allowing the respondents
to continue with the prosecution against the appellants for the offence punishable
under Section 500 IPC would not, in our opinion, subserve the ends of justice and
may result in the appellants getting vexed twice on the same facts. We are doubtless
conscious of the fact that any complaint under Section 500 IPC may become time
barred if the complaint already lodged is quashed. That is not an insurmountable
difficult; and can be taken care of by moulding the relief suitably.
It would, in our opinion,
be appropriate if the orders passed by the Metropolitan Magistrate and that passed
by the High Court are set aside and the complaint filed by the respondent directed
to be transferred to the Court dealing with the charge sheet filed against the respondent.
The said court shall treat the complaint as an application for filing of a
complaint under Section 211 of the IPC to be considered and disposed of at the
final conclusion of the trial; having regard to the provisions of Section 340 of
IPC and the finding regarding guilt or innocence of the respondent as the case
may be recorded against him.
The respondent shall
also have the liberty to proceed with the complaint in so far as the same relates
to commission of the offence punishable under Section 500 of the IPC depending
upon whether there is any room for doing so in the light of the findings which
the court may record at the conclusion of the trial against the respondent.
the result these appeals are allowed, and order dated 3rd February, 2003 passed
by the Metropolitan Magistrate and that passed by the High Court dated 26th February,
2008 are quashed. Criminal complaint No.180/1 of 2002 filed by the respondent
shall stand transferred to the Court of competent jurisdiction seized of the charge-sheet
filed against the respondents, for such orders as the Court may deem fit at the
conclusion of the trial of the respondent having regard to the observations