J. M. L. Sinha, J. - (1.) THIS is an application under Sec. 482 of the Code of Criminal Procedure filed by Babu Ram and Smt. Ram Sakhi praying that the proceedings under section 211 I. P. C. (Case No. 345 of 1969) pending before the Munsif Magistrate, Mainpuri, be quashed.
(2.) THE facts leading up to this application can briefly be stated as under :- On the night between 16th and 17th of June, 1969 Smt. Ram Sakhi (hereinafter to be called Applicant No. 2) filed a report at P. S. Bhogaon, District Mainpuri, against opposite party No. 1 and others alleging that they had abducted her husband, applicant No. 1. A case under section 365 I. P. C. was registered on the basis of that report and investigation followed. During the course of investigation opposite party No. 1 was arrested along with two other persons, namely, Banwari and Badal. They were later released on bail. On 23rd of June, 1969 Babu Ram, applicant No 1, was recovered at Badaun from the custody of some other persons. Thereupon the police submitted a final report under section 169, Cr. P. C. In the meantime applicant No. 1. Babu Ram, filed a complaint on 28th of July, 1969, under section 364, I. P. C against opposite party No. 1 and two others. The learned Magistrate, before whom the complaint was filed, took cognizance of the same and summoned the accused. When the aforesaid complaint and the final report were pending in the court of the Magistrate, the opposite party No. 1 filed a complaint on 16th of September, 1969, against the applicants alleging that the applicant No. 1 lodged a false report against him under sec. 364, I.P.C. and that the applicant No. 1 in collusion with applicant No. 2 had concealed himself some where to facilitate investigation being taken on that false report. In the hearing of the complaint the offence charged is mentioned as sec. 211 I.P.C. In the body of the complaint, however, the offence is not specified. The allegations in the report can, however, either fall under section 182, I. P. C. or section 211, I. P. C. Since the complaint filed by Babu Ram and the final report submitted by the police were yet pending, this complaint was consigned to the record room. On 24th of April, 1972 the opposite party No. 1 and other co-accused were discharged in the complaint case and the final report submitted by the police was accepted. Thus the complaint filed by Babu Ram as well as final report submitted by the police were disposed of on 24th of April, 1972. Thereafter the complaint filed by the opposite party No. 1 reviewed and cognizance was taken by the learned Magistrate on that complaint on 5th of January, 1973. The complaint was later transferred to the court of Munsif Magistrate, Mainpuri, and an objection was taken before him on behalf of the applicants that the complaint was barred by section 195 (1) (b) of the Code of Criminal Procedure. The objection did not find favour with the learned Magistrate and was rejected on 13th of June, 1974. The applicant then went up in revision before the Sessions Judge, which was rejected, inter alia, on the ground that the order being an interlocutory nature, no revision could lie against it. Dissatisfied with it, the applicants have preferred this application. The sole question for consideration in this case is whether the complaint filed by opposite party No. 1 is barred by section 195 of the Code of Criminal Procedure (old).
(3.) THE complaint is styled to be one under section 211, I.P.C. According to the allegations contained therein, however, it can fall rither under section 182 or under section 211 I. P. C. THE learned counsel for the State urged that it is open to the Magistrate to charge the applicants, on the basis of the facts contained in the complaint, of an offence under section 182 of the Code of Criminal Procedure instead of 211, I. P. C. I do not think, however, this argument can be of any help whatsoever to the State, for, if the facts alleged in the complaint constitute an offence under section 182, I. P. C. the complaint would be clearly barred by section 195 (1) of the Code of Criminal Procedure, which reads as follows .- "195. (1) No court shall take cognizance- (a) of any offence punishable under sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate." There is no controversy before me about the fact that the report was lodged by applicant No. 2 at police station Bhogaon. In view of the mandatory language contained in section 195 (1) (a), therefore, the complaint for the offence under section 182, I. P. C. could only be filed either by the Station Officer Police, Station Bhogaon, or an officer superior to him in rank. The opposite party No. 1 could not himself file a complaint for the offence under section 182, I. P. C.;