Guest Post: An Analysis of Shiv Gopal Jaiswal v State of UP

(This is a guest post by Simran Sidhu)

Introduction

Section 195(1)(a) of Criminal Procedure Code (CrPC) mandates that courts can only take cognizance of offences punishable under Sections 172 to 188 of the Indian Penal Code (IPC) upon a written complaint by a public servant. There have been differing opinions of different high courts as to whether the Section 174A of IPC would come under this bar created by the Section 195(1)(a) of CrPC, leading to the procedural ambiguity.

The judgment by the Single Judge Bench of Allahabad High Court in Shiv Gopal Jaiswal v. State of UP adds on to this ongoing controversy on the applicability of bar of CrPC for prosecuting the accused for the offence under Section 174A IPC i.e., failure to appear before a court after the issuance of summons. The case prompts significant questions regarding the procedural requisites for conducting criminal proceedings against those accused under Section 174A of IPC, which this case comment will seek to examine.

Facts and Issue

The applicant, Shiv Gopal, faced serious allegations of cheating and criminal breach of trust resulting in the registration of the First Information Report (FIR) and initiation of investigation. He failed to appear in court, so a warrant was issued. A newspaper notice was published to inform him of the case and to appear in the court. Despite this notice, the applicant failed to appear, leading the Magistrate to declare him an absconder. Subsequently, another FIR was registered under Section 174A of IPC.

Aggrieved by the Magistrate’s decision, the accused filed an appeal challenging the impugned order. This appeal raised questions regarding the procedural aspect of prosecuting the accused under Section 174A of IPC based on the chargesheet filed by the police before the Hon’ble High Court. The High Court dismissed the application and refused to quash the FIR, while subsequently ruling that the bar of Section 195(1)(a) of CrPC does not apply on the offence under Section 174A of IPC.

The High Court noted that, in the present case, cognizance was taken by the Magistrate on the charge sheet submitted by the police. The dispute regarding whether the magistrate took cognizance based on the charge sheet filed by the police might initially appear inconsequential, but when proviso to Section 195(1)(a) of CrPC is applied in the present scenario of facts, a more crucial procedural issue emerges: Whether a court is authorised to take cognizance of an offence punishable under Section 174A of IPC?

Analysis

The legislative intent behind Section 174A of IPC’s cognizable status is neglected.

The court reasoned that 174A could not be interpreted within the provisions of Section 172 IPC to Section 188 of the IPC, as stipulated in Section 195(1)(a) of CrPC. This conclusion was founded on the nature of the Section 174A as a cognizable and non-bailable offence according to the First Schedule, in contrast with the non-cognizable and bailable offences from Section 172 to 188 of the IPC. This rationale was also the foundation of the Delhi High Court’s ruling in Maneesh Goomer’s case, which supported that 174A is exempted from the scope of Section 195(1)(a) of CrPC.

The Court, however, disregarded the fact that Section 188 IPC, which is also covered by the Section 195(1)(a), is cognizable and non-bailable per the First Schedule of CrPC. Despite this, the constraints imposed by Section 195(1)(a) are applicable to Section 188 IPC, as affirmed by the Supreme Court in C. Muniappan v. State of Tamil Nadu. Therefore, the court’s position is flawed since it falsely assumes the absence of another cognizable and non-bailable Section.

The procedural complexities intensify when faced examining the onset of Section 195 of CrPC and its potential friction with the FIR registration procedures or investigative powers accorded to a police officer by the procedural code, as in a situation where an individual is charged with an offence under Section 174A of IPC, the investigating officer would be authorised to arrest without a warrant, due to the cognizable nature of offence. Nonetheless, the procedural limitation set forth by the code would preclude the court from taking cognizance unless a written complaint is filed by the public servant. Therefore, the court stated that the legislative intent of making Section 174A of IPC a cognizable offence would be undermined if this procedural bar is applied onto it.

The plain reading of Section 195 CrPC suggests that its provisions become operative only when the court intends to take cognizance of the offence, as articulated by the Supreme Court in State of Punjab v. Raj Singh. The court affirmed that Section 195 CrPC does not impede the investigative power of the police, allowing for the submission of chargesheet related to Section 174A of IPC, though the court is precluded from taking cognizance based on that chargesheet.

Accordingly, Section 195 CrPC does not restrict the police from performing investigations and lodging FIR against the accused; it only curtails the Court’s ability to take cognizance based on a charge sheet or FIR. In this case, the procedural irregularity was the magistrate’s failure to adhere to the requisite written complaint procedure, instead directing the police to carry out an investigation and file an FIR under Section 174A of IPC.

Thus, the court’s assertion that the enforcement of constraints of Section 195(1)(a) would contravene the legislative aim of designating Section 174A of IPC seems to be founded on a fundamental misinterpretation, which incorrectly presumes that the police is barred from investigating and filing the FIR for this offence.

Lodging Complaints is limited to non-cognizable offences.

The court further stated that in accordance with the explanatory clause of Section 2(d) CrPC, a complaint must be filed solely for offences categorised as non-cognizable and bailable under the First Schedule, implying that the complaint could not be lodged for an offence under Section 174A of IPC, given its cognizable nature. Nonetheless, Section 195(1)(a) of CrPC mandates that the court take cognizance only upon a complaint filed by a public servant. Following this interpretive logic, the court ruled that Section 174A of IPC is extraneous to the scope of Section 195(1)(a) of CrPC.

However, the court again erred in its reasoning by overlooking Section 188 IPC and judicial jurisprudence set by the Supreme Court in State of UP v. Mata Bhikh, which established that the proceedings would be deemed void ab initio if the court takes cognizance of an offence enlisted under the Section 195(1)(a) of CrPC (including Section 188 IPC) without a written complaint from a public servant. Despite Section 188 being cognizable, the court affirmed the restriction of Section 195(1)(a) of CrPC, asserting that the bar is applicable irrespective of whether the offence is categorised as cognizable or non-cognizable according to the First Schedule. In consonance with the Supreme Court’s interpretation, it follows that the mandate for a complaint from a public servant extends beyond non-cognizable cases to include cognizable ones, as demonstrated by the Court’s requirement for a complaint in case of a cognizable offence under Section 188 IPC. Therefore, the High Court ruling to exempt Section 174A from the purview of the Section 195(1)(a) of CrPC is based on the defective rationale, incorrectly limiting the scope of public servant’s complaints to non-cognizable cases, and thereby excluding the cognizable offences from this procedural mandate.

Principles of Equity

The incorporation of section 174A into the IPC via the 2005 amendment, with its subsequent classification as cognizable and non-bailable in the First Schedule of the CrPC, suggests that there was no legislative intent to exclude it from Section 195 (1)(a). This observation is supported by the lack of corresponding legislative amendment in the newly enacted Bharatiya Nagrik Suraksha Samhita (BNSS) and Bhartiya Nyaya Sanhita (BNS), where Section 215 of the BNSS, mirroring section 195 of the CrPC, excludes Section 207 of the BNS, which parallels Section 174A of IPC.

Even if there exists incongruity regarding the applicability of bar under Section 195(1)(a) to Section 174A, the court’s interpretation should have favoured the accused, in line with the principle of lenity, which states that whenever there is some ambiguity with the law, the court should interpret it in a way that is favourable to the accused. Instead, the court construed Section 174A as outside the scope of Section 195(1)(a), to the detriment of the accused. This interpretation obviates the procedural safeguard of requiring a complaint under Section 195(1)(a) prior to prosecution.

Conclusion

The verdict in the present case reveals the intricate and convoluted facets of prosecuting under Section 174A of IPC, especially in relation to procedural prerequisites stipulated by Section 195(1)(a) of CrPC. The differing judicial approaches further compound the procedural uncertainty. In subsequent cases like Sumit v. State of UP, the Allahabad High Court took a contrary view, albeit without effectively overruling the present judgment. The Delhi High Court aligns with the present case’s rationale, while the Punjab and Haryana High Court in Pradeep Kumar v. State of Punjab and the Himachal Pradesh High Court in Rajinder Ghazta v. State of HP adopt opposing stances. This inconsistency in judicial reasoning compels the Supreme Court’s decisive intervention to clarify procedural ambiguities and establish a uniform  legal position for subordinate courts to harmonise judicial interpretations, and safeguard due process.