Criminal Writ Petition No.719 of 1991

22nd September, 1998

Petitioner Counsel: Shri G.B. TIRODKAR
Respondent Counsel: Shri MEHTA , Mrs.KEJRIWAL

Cases Cited:
AIR 1962 SC 1206 [Para 4]

JUDGMENT

JUDGMENT :- This writ petition is directed against the issue of Summons by the court of Metropolitan Magistrate, 28th Court, Esplanade, Bombay 400 007 in Case No.406/S of 1985.

2. I heard counsel for the Petitioner Mr.G.V. Tirodkar and Mr.Mehta for Respondent No.1 and Smt.U.V. Kejriwal, A.P.P. for Respondent No.2 State.

3. The short question involved in this petition is that whether the complaint in question is maintainable in view of Sec.195 of Cr.P.C. I have examined the complaint. It is disclosed that on 5/2/1985 warrant of authorization under Sec.132 of the Income Tax Act was issued by the Director of Inspection (Investigation), Unit III(2) Bombay, for the search of the premises of M/s. Business Corporation of India having their address at Himgiri, Peddar Road, Bombay 26. On the strength of that warrant one Shri. A.L. Arokiodas, A.D.I. (Investigation) along with some other officers conducted search in the premises of the accused and also statement of the accused was recorded. During the course of that search, it is alleged that the petitioner who happened to be there, being wife of Surendra Kumar Sarup Garg whose premises was sought to be searched. It is averred in the complaint that certain false statement has been made by the petitioner during the search. On that basis complaint has been filed before the Magistrate under Sec.191 read with Sec.193 and 182 I.P.C. The learned Magistrate while framing the charge has found that no offence has been made out under Sec. 191 and 193 I.P.C. But the Magistrate found that the offence under Sec.182 I.P.C. has been made out. Against this order of the Magistrate, the petitioner approached this court under Section 482 of Cr.P.C. The learned counsel for the petitioner Mr.Tirodkar based his submissions on two grounds; one, officer who filed complaint is not a competent authority to maintain the complaint before the Magistrate in view of Sec. 195(a)(iii) of Cr.P.C. and second submission is that the information alleged to have been given by the petitioner at the time of search is not information as contemplated under Sec. 182 I.P.C. After hearing the parties, I find that I can dispose of the writ petition on the first ground alone. Therefore, I do not want to embark upon second point raised by the court for the petition.

4. Admittedly, one Shri. A.L. Arokiodas, A.D.I. (Investigation) has conducted the search before whom the alleged information was given by the petitioner. It is not the case that the complainant is Superior officer of aforesaid Arokiodas. In view of Sec.195 (a)(iii) in order to maintain the complaint for the offence under Sec.182 I.P.C. the complaint must be filed either by the person before whom such information was given or the Superior Officer of the Public Servant. Here, Arokiodas is not complainant nor B.S. Varma, complainant herein, is the Superior Officer of Arokiodas. In view of this contention of the counsel for the petitioner, has to be accepted and the complaint cannot be maintained under Sec.195(a)(iii) Cr.P.C. This view is fortified by the decision of the Supreme Court in Daulat Ram Vs. State of Punjab reported in A.I.R 1962 S.C. 1206.

5. In view of this complaint in this case, filed by Shri, B.S. Varma is not maintainable and is liable to be quashed. The proceeding initiated by the complainant has to be quashed.

6. In the result, writ petition is allowed.

Rule made absolute in terms of Prayer clause (b).

C.C. expedited.

Prayer Clause (b):

"that the order dated 06.05.1991, passed by the Learned Metropolitan Magistrate, 28th Court, Esplanade, Bombay, in Court Case No.406/S of 1985, summoning the petitioner to attend the court for explaining the charge under Section 182 of the Indian Penal Code be quashed and set aside, and the entire proceedings be quashed."

Petition allowed