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.

Update: Delhi High Court Decision on Section 82 and Proclaimed Offenders

A couple of years ago, this Blog discussed the legal position on Section 82(4) Cr.P.C. and the legal issue of how do we interpret the term "proclaimed offenders" used therein. The earlier post described the problem thus: 

Section 82(4) was inserted in 2006 to state that failure to appear after a proclamation entitles a court to pronounce the person a "Proclaimed Offender" and make a declaration to that effect. Importantly though, 82(4) is limited to proclamations in respect of persons accused of offences punishable under Sections 302, 304, 364, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code. The consequences of a proclamation are twofold. One, a proclamation triggers Section 83 Cr.P.C., enabling a court to attach any property belonging to the proclaimed person which may be sold upon continued absence. Two, Section 174-A of the IPC (also inserted in 2006 by the same amending statute) makes it an offence to not appear following proclamations under Section 82 Cr.P.C. In 174-A IPC a distinction was made: disobeying a Section 82(1) proclamation was punishable with imprisonment upto 3 years or fine or both, but where a declaration under Section 82(4) was made a person could be punished with imprisonment upto 7 years with a mandatory fine. 

...

... Section 82 today creates two separate classes of proclamations: those for persons accused of offences specified under Section 82(4), and all other proclamations. This is supplemented by Section 174-A IPC, which reiterates that a higher punishment may be inflicted upon those declared Proclaimed Offenders under 82(4). There is no such declaration for disobeying the other proclamations issued under Section 82(1), which brings us to the issue at hand. Can persons other than those accused of offences listed under Section 82(4) be declared Proclaimed Offenders?

Further, the post mentioned how the Punjab and Haryana High Court had considered the issue in a 2012 decision titled Deeksha Puri v. State of Haryana, where it concluded that persons other than those mentioned under Section 82(4) were also proclaimed offenders. In the 2016 post, it was argued that this conclusion was incorrect, not least because of it being completely unsupported by the text.

Yesterday, i.e. on July 31, 2018, a Single Judge Bench of the Delhi High Court in Sanjay Bhandari v. State [Crl Revision Petition No. 223 of 2018] specifically disagreed with the Punjab and Haryana High Court, and concluded that "Proclaimed Offender" is a term of art, that can only be used in respect of the categories of offences covered by Section 82(4), Cr.P.C. Persons who disobey proclamation notices in cases involving other offences are "Proclaimed Persons". For such persons, law enforcement cannot resort to the aggravated punishment clauses of Section 174-A of the Indian Penal Code. As an aside, the other question posed in the earlier blog post - why is this list of offences used in Section 82(4) - remains unanswered. The Delhi High Court in Sanjay Bhandari only engages with that list of offences to assert that it contains "serious offences" [Para 14], without telling us why these serious offences are part of the list, which excludes Section 376 IPC that punishes rape.

With this conflict between different High Courts, will the matter reach the Supreme Court, or can the Parliament be suggested (wisely) to intervene and clarify the text? 

Section 82 CrPC and Proclaimed Offenders

This post highlights what seems to be an anomaly in the procedure under Section 82 of the Criminal Procedure Code 1973 [Cr.P.C.] for compelling the appearance of persons before court. But before coming to the issue itself, its necessary to explain the general scheme of securing the attendance of persons under the Code.

Summons, Warrants and their Compliance

How does the court secure the presence of persons before it? Chapter VI of the Cr.P.C. explains this procedure in detail, telling us that there are either (a) summons or (b) warrants of arrest, that may be issued by a Court to ensure a person is present before it. Although the Code does not provide for a distinction, in practice two kinds of warrants may be issued, (i) bailable warrants and (ii) non-bailable warrants. The Supreme Court in Inder Mohan Goswami v. State of Uttaranchal [(2007) 12 SCC 1] provided some guidelines on how this discretion vested with a court may be exercised.

If summons were sent to X and she failed to comply without tendering any explanation, a warrant may be issued for her arrest [See, Section 87 Cr.P.C., which enables a warrant to be issued even where summons have not been sent]. But what happens when despite a warrant being issued, a person fails to appear before the Court? If the court has reason to believe that the person is deliberately avoiding the warrant, Section 82(1) empowers the court to publish written proclamations [in accordance with Section 82(2)] requiring her to appear before court on a specified place and time. But what if, despite the proclamation, the person fails to appear?

Of Proclaimed Persons and Proclaimed Offenders

Section 82(4) was inserted in 2006 to state that failure to appear after a proclamation entitles a court to pronounce the person a "Proclaimed Offender" and make a declaration to that effect. Importantly though, 82(4) is limited to proclamations in respect of persons accused of offences punishable under Sections 302, 304, 364, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code. The consequences of a proclamation are twofold. One, a proclamation triggers Section 83 Cr.P.C., enabling a court to attach any property belonging to the proclaimed person which may be sold upon continued absence. Two, Section 174-A of the IPC (also inserted in 2006 by the same amending statute) makes it an offence to not appear following proclamations under Section 82 Cr.P.C. In 174-A IPC a distinction was made: disobeying a Section 82(1) proclamation was punishable with imprisonment upto 3 years or fine or both, but where a declaration under Section 82(4) was made a person could be punished with imprisonment upto 7 years with a mandatory fine. 

The History behind the Text

The notion of a Proclaimed Offender as it exists today did not always find a place in the Code. in the 1872 Code, there was no mention of a Proclaimed Offender. It was in Section 45 of the 1882 Code that the words were first found, only in respect of the duties of village officers to make a report. In 1894 an explanation clause was added to Section 45 thereby expanding the definition of Proclaimed Offender. This was the first instance when the list of sections currently found in Section 82(4) found a place in the Code. The 1898 Code retained the provisions of Section 45 with respect to Proclaimed Offenders in its amended form, which today is provisions of Section 40 of the Cr.P.C. 1973.

Why was the definition of Proclaimed Offender expanded in 1894? The clause expanding the definition was in fact one in a set of identical clauses inserted that to iron out jurisdictional issues which were faced by the Crown in prosecutions of certain offences. This is clear by reading the full clause:

"the expression proclaimed offender includes any person proclaimed as an offender by any court or authority in any territory in India to which this Code does not extend, in respect of any act which if committed in the territories to which this Code extends, would be an offence punishable with under any of the following sections of the Indian Penal Code, namely, 302, 304, 364, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 (both inclusive)"

Through history, we understand why it was necessary to amend the law in 1894 to insert the clause with this specific list of sections. Since the Cr.P.C. does not extend to all parts of India, it made sense to retain it post independence. But why was this list of sections specifically inserted in Section 82? For that, I found no answer. Although the proposal was seemingly made in the Criminal Procedure Code (Amendment) Bill of 1994 and included in a questionnaire prepared by the Law Commission, there is no discussion in the Report. These offences cannot be considered exhaustive of the set of grave offences under the IPC to argue that they merit a separate class. All facts seem to suggest that this list of offences is rather arbitrarily placed under Section 82(4) Cr.P.C.

Dealing with the Current Position
For reasons we cannot gather, Section 82 today creates two separate classes of proclamations: those for persons accused of offences specified under Section 82(4), and all other proclamations. This is supplemented by Section 174-A IPC, which reiterates that a higher punishment may be inflicted upon those declared Proclaimed Offenders under 82(4). There is no such declaration for disobeying the other proclamations issued under Section 82(1), which brings us to the issue at hand. Can persons other than those accused of offences listed under Section 82(4) be declared Proclaimed Offenders? The absence of any declarations outside of Section 82(4) was considered a problem by the Punjab & Haryana High Court, and in a lengthy decision [Deeksha Puri v. State of Haryana, Crl.M.C. 359/2012 decided on 16.10.2012] it concluded that the apparent labeling lacuna must be resolved by calling any persons disobeying a proclamation a Proclaimed Offender.

I disagree with the High Court on two points. First, the absence of a declaration for 82(1) Cr.P.C. does not create any real problem as is evident from the declaration mechanism being entirely absent from the Code until 2006. Second, even if there is a problem of labeling, the High Court arrived at solution by effectively rewriting the plain text of the statute which is contrary to settled principles of interpretation. Rather than proactively amend the law, its better to stick to the plain text and follow the procedure which follows, i.e. restrict declarations of Proclaimed Offender to only those cases outlined under Section 82(4). As I often conclude though, an amendment would indeed be ideal.

My thanks to Mr. Ankit Agarwal, Advocate and Ms. Shweta V., undergraduate student at NUALS, Kochi for their inputs and assistance