Offence U/S 174-A IPC Cognizable Only Based On A Written Complaint Of Concerned Court; Police Can't Lodge An FIR: Allahabad HC

For context, Section 174A IPC, which was introduced in 2005, criminalises the non-appearance of proclaimed offenders at the specified place and time.

In brief, as per HC's ruling, cognizance of the offence under Section 174A IPC can be taken by a Court only based on a written complaint of the court which had initiated proceedings u/s 82 CrPC against the accused.

To hold thus, a bench of Justice Anjani Kumar Mishra and Justice Arun Kumar Singh Deshwal referred to the mandate of Section 195(1)(a)(i) CrPC which prohibits a Court from taking cognizance of any offence punishable u/s 172 to 188 IPC.

The Court added that Section 174-A IPC was inserted by way of amendment in 2005 between Sections 172 to 188, and therefore, it is clear that Section 174-A IPC is part of the offences mentioned in Section 195(1)(a)(i) CrPC for which court is barred from taking cognizance except upon a complaint by the court.

“Therefore, once Section 195(1)(a)(i) CrPC prohibits the taking cognizance of the offence u/s 174-A IPC, except on the basis of written complaint, then permitting lodging of an F.I.R. u/s 174-A IPC will amount to travesty of justice to the person concerned as the personal liberty under Article 21 of the Constitution cannot be deprived, except in accordance with law” the Court held.

With this, the Court also held that the Allahabad HC's 2015 Judgment in Moti Singh Sirkarwar vs. State of U.P. and others did not lay down the correct law regarding the interpretation of Section 174-A I.P.C. read with Section 195(1)(a)(i) CrPC.

In Moti Singh (Supra), the HC had held that Section 174-A IPC is a cognizable and nonbailable offence and therefore, while introducing Section 174-A in the IPC in the year 2006, it made no corresponding amendment in Section 195(1)(a) CrPC to include Section 174- I.P.C. in between all the non-cognizable offences and bailable from Sections 172 to 188 I.P.C

The case in brief

In the instant case, the accused-Petitioners were charge-sheeted by the Police under Sections 395, 412 IPC, on which, the Magistrate took cognizance and thereafter, it issued nonbailable warrants against the petitioners and later on, a proclamation under Section 82 CrPC was also issued against them. Thereafter, an FIR under Section 174-A I.P.C. was lodged against the petitioners by the police. Challenging the same, the petitioners moved the HC.

High Court's observations

Perusing Section 195(1)(a) CrPC, the Court noted offences punishable u/s 172 to 188 IPC are cognizable by the court only when a complaint in writing is filed by the public servant concerned or his subordinate and as per Section 21 IPC, a "public servant" includes every judge, including any person empowered by law to discharge any adjudicatory function.

Therefore, the Magistrate who issues proceedings u/s 82 CrPC will be deemed to be a public servant within the meaning of Section 195 CrPC, the Court added.

The Court further observed that at the time of inserting Section 174-A in IPC, the legislature was well aware of the category of offences u/s 195(1)(a)(i) CrPC, and even then, Section 195(1)(a)(i) CrPC was kept untouched intentionally as the legislature intended to include one more cognizable offence i.e. 174-A IPC for providing the bar of cognizance on the part of court for offences mentioned in Section 195(1)(a)(i) CrPC, except on the complaint.

The Court also opined that this provision was included u/s 195(1)(a) (i) CrPC so as to prohibit the police from making unnecessary harassment of the accused as the police had already been proceeding against him u/s 82 CrPC.

“Therefore, the sole purpose of legislature by putting Section 174-A in the category of offence mentioned in Section 195(1)(a)(i) CrPC is to make act of accused punishable for not honouring the process u/s 82 CrPC. and also to protect the unnecessary violation of personal liberty of the accused because police is already free to arrest and take action against the accused person under the proceeding of Section 82 CrPC as well as pending NBW,” the Court said as it quashed the impugned FIR.

However, the Court kept it open for the concerned court to file a written complaint against the petitioners u/s 174-A IPC as per Section 195(1) CrPC, if there is no legal impediment.

Appearances

Counsel for Applicant: Akhilesh Srivastava, Saksham Srivastava

Counsel for Opposite Party: GA

Case title - Sumit And Another vs. State Of U.P. And 2 Others

Case Citation: 2024 LiveLaw (AB) 8

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