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Saloni Arora v. State of NCT of Delhi - (Supreme Court) (10 Jan 2017)

Prosecution under Section 182 of IPC void without following procedure prescribed under Section 195 of Cr. PC

MANU/SC/0032/2017

Criminal

Instant appeals arise out of criminal proceedings pending in Court of Additional Session Judge, Delhi in relation to offences registered under Sections 120-B, 201, 302, 364 and 365 of Indian Penal Code, 1860 (IPC) against accused on basis of FIR. In aforementioned proceedings, State Prosecuting Agency sought to prosecute Appellant for commission of an offence punishable under Section 182 of IPC. Appellant, felt aggrieved of this action of prosecuting agency, filed an application for her discharge on ground that, since no procedure contemplated under Section 195 of Code of Criminal Procedure, 1973 (Cr. PC) was followed by prosecution, Appellant cannot be prosecuted for such offence. Trial Court dismissed Appellant's application and order of trial Court was upheld by High Court.

Learned counsel for parties rightly pointed out on strength of law laid down by this Court in case of Daulat Ram vs. State of Punjab, that in order to prosecute an accused for an offence punishable under Section 182 of IPC, it is mandatory to follow procedure prescribed under Section 195 of the Code else such action is rendered void ab initio. In case of Daulat Ram it was held that, there is an absolute bar against the Court taking seisin of case under Section 182 of IPC except in manner provided by Section 195 of Cr. PC. Section 182 of IPC does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. Complaint must be in writing by public servant concerned. Trial under Section 182 of IPC without Tehsildar’s complaint in writing is, therefore, without jurisdiction ab initio.

In present case, prosecution while initiating action against appellant, prosecution did not take recourse to the procedure prescribed under Section 195 of Cr. PC. Supreme Court allowed the appeals and opined that action taken by prosecution against Appellant insofar as it relates to offence under Section 182 of IPC is concerned, is rendered void ab initio being against the law laid down in case of Daulat Ram.

Relevant : Daulat Ram vs. State of Punjab, (AIR 1962 SC 1206), Section 182 of Indian Penal Code, 1860, Section 195 of Code of Criminal Procedure, 1973

Tags : CONVICTION   PROCEDURE   APPLICABILITY  

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