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Sections 4 And 5 Of CrPC Do Not Apply To Offences Under IPC: Allahabad High Court

Sparsh Upadhyay
30 Jun 2022 11:36 AM GMT
Allahabad High Court, Appeal, 372 CrPC, Enhancement Of Punishment, Not Maintainable, Justice Vivek Kumar Birla and Justice Vikas Budhwar,

The Allahabad High Court has held that the provisions of Sections 4 and 5 of the CrPC do not apply to offencs committed under the Indian Penal Code and that these provisions are applicable when any special act comes into operation.

The Division Bench of Justice Kaushal Jayendra Thaker and justice Gautam Chowdhary passed this order while hearing a petition filed by Mohar Pal And Another and observed that Sections 4 and 5 of CrPC pertain to the procedure where the offence under a particular Act is committed.

The case in brief

Essentially, the petitioners had prayed for quashing of the FIR registered under sections 420A, 406, and 120B IPC against them. It has been alleged in the FIR that the informant had to get machines on concessional rates from petitioner no.1.

A bank transaction of Rs.2,03,280/- from the bank of the informant was made to the petitioner, Mohar Pal. However, despite the money being given by way of a bank account, no machine was supplied to the informant.

Thereafter, Kamlesh Singh, to whom the money was also sent, issued a cheque after deducting the commission. The amounts could not be realized and therefore, the informant again requested both the accused along with his brother but they have locked the premises and are not available.

In 2021, the Court directed for investigation as it is prima facie found that a cognizable offence had been committed by the accused and a charge sheet was filed.

Thereafter, the counsel for the petitioners moved the Court challenging the FIR while arguing that Sections 4 and 5 of the Cr.P.C. would be applicable in the facts of the case and thus, since the offence was allegedly committed under the Negotiable Instrument Act and so, the procedure enshrined under the CrPC won't be applicable.

Now, against this backdrop, discarding this argument, the Court averred that the informant had invoked the criminal jurisdiction and not the jurisdiction under Section 138 of the Negotiable Instrument Act and therefore, Section 5 cannot be made applicable, as it related to special laws only.

Further, the Court referred to the case of Noorulla Khan Vs. Karnataka State Pollution Control Board, AIR 2021 SC 3438 to observed thus:

"...Section 5 of Cr.P.C. applies to the proceedings under the Special Act. The Act specifies certain procedural justice and protection. Proceedings under the Indian Penal Code would be governed by the Criminal Procedure Code only and therefore, the provisions of Section 5 of Cr.P.C. and 468 Cr.P.C. read with contours for invoking Article 226 of the Constitution will not permit us to interfere in the investigation as prima facie, facts go to show that the ingredients of Section 406, 420 and 120-B IPC are made out against the accused. The actus reus is also prima facie proved to dupe the informant."

Accordingly, the petition being devoid of merit was dismissed with the costs of Rs.5,000/- as the Court stressed that Sections 4 and 5 of Cr.P.C. cannot be made applicable to the facts of the instant case.

The Court noted that since the complainant/informant had not invoked the provisions of the special Act (N.I. Act) but the alleged commission of offences punishable under the Indian Penal Code, that are triable as per procedural law i.e. Criminal Procedure Code.

Case title - Mohar Pal And Another v. State Of U.P. And 2 Others

Case citation: 2022 LiveLaw (AB) 306

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