MR.JUSTICE D.BHARATHA CHAKRAVARTHY Crl.O.P.(MD).No.2560 of 2021 and Crl.M.P.(MD).No.1335 of 2021 Seetha Lakshmi .. Petitioner
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Orders reserved on : 17.10.2024
Orders pronounced on : 29.11.2024
CORAM :
THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.O.P.(MD).No.2560 of 2021
and Crl.M.P.(MD).No.1335 of 2021
Seetha Lakshmi .. Petitioner
Versus
1. State Rep. by
The Deputy/Assistant Superintendent of Police,
Sivagangai District.
2. The Inspector of Police,
All Women Police Station,
Sivagangai.
(Crime No.04 of 2020)
3. AAA .. Respondents
(The name of the third respondent is redacted
by the order, dated 29.11.2024
in Crl.O.P.(MD).No.2560 of 2021)
Prayer : Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to call for the records pertaining to the charge sheet in Spl.S.C.No.39 of 2020 on the file of the learned Special Sessions Court for PCR Cases, Sivagangai and to quash the same so far as the petitioner is concerned.
For Petitioner : Mr.K.Navaneetharaja
For Respondents : Mrs.Aasha,
Government Advocate (Crl. Side),
for RR-1 and 2
: No Appearance for R3
: Mr.S.Poornachandran,
Amicus Curiae
ORDER
This Criminal Revision Petition is filed with a prayer to call for the records pertaining to the charge sheet in Spl.S.C.No.39 of 2020 on the file of the Special Court for Trial of Cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Sivagangai and quash the same insofar as the petitioner is concerned.
2. The above case arises out of Crime No.04 of 2020 on the file of the All Women Police Station, Sivagangai for the alleged offences under Sections 195A, 201, 508(1) and 214 of the Indian Penal Code (hereinafter referred to as ‘IPC’) read with Section 3(2)(vi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (hereinafter referred to as ‘the SC/ST Act’) and Section 16 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the POCSO Act’).
3. There are three accused in the above case. The first accused is one Murugan, the second accused is the petitioner herein and the third accused is one Indraganthi. The case of the prosecution is that L.W.1, the victim child involved in this case was aged about 14 years in the year 2015. She belongs to the Scheduled Caste community. Since her mother died, she was in the care of her grandmother, who is L.W.5. While there, she stayed in a Home namely, Jebathota Magizhchi Illam and was studying IV standard in the Panchayat Union Elementary School, Periyanarikottai village. At that time, the first accused was the Headmaster of the said school. On 06.04.2015, at about 3.00 P.M., the first accused took the child to the toilet of the school and committed penetrative sexual assault on the child. As such, a case in Crime No.6 of 2015 was registered and after investigation, finding prima facie material against the first accused concerning the victim-child and also some more children, a Final Report was filed against the first accused under Section 6 read with Section 5(f)(1)(m)(o)(p), Section 10 read with Section 9(f)(d) of the POCSO Act read with Section 3(1)(xi)(xii) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Ordinance Amendment Act, 1989 and Rule 7(i) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 and the case is taken on file and is pending in Spl. S.C.No.15 of 2015.
4. When the matter was pending, on 24.04.2016, knowing the fact that the victim child was supposed to give evidence on 25.04.2016, the first accused, along with his wife/petitioner herein, who is the second accused, went to the house of the child and also her grandmother and pressurised and threatened them to give false evidence in the case. Similarly, they went to the houses of the other victim-children involved in the case and pressured them to give false evidence. In continuation thereof, when the victim child and the other victim children came to the Court on 25.04.2016 at about 9.45 A.M to depose before the Court, the first accused took them to the chambers of the Special Public Prosecutor, the third accused. The third accused, being in the position of the Special Public Prosecutor, instead of encouraging them to speak the truth, to save the first accused threatened the children in her chambers to give false evidence. As such, the present case was registered, and after investigation, a Final Report was filed, after the committal, the same was taken on file and is pending in Spl.S.C.No.39 of 2020. To quash the said Final Report, this Criminal Original Petition is filed on behalf of the second accused.
5. Heard Mr.K.Navaneetharaja, learned Counsel for the petitioner, Mrs.Aasha, learned Government Advocate (Crl. Side) for the respondent Nos.1 and 2 and Mr.S.Poornachandran, learned Amicus Curiae.
6. The victim-child is added as the third respondent in the petition. It is seen that in the Final Report, as well as before this Court, the actual names and particulars are mentioned. The registry is directed to redact the name of the third respondent, and she will be referred to as ‘AAA’ in the order.
7. Mr.K.Navaneetharaja, learned Counsel for the petitioner would contend that the primary offence involved in the present case is under Section 195A of I.P.C. He would submit that in respect of Section 195A, there is a bar under Section 195(1)(b) of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C’), which mandates that no Court shall take cognizance of the offence except on the complaint in writing of that Court concerned or by such officer of the Court. The provision is mandatory, and ‘complaint’ is defined under Section 2(d) of Cr.P.C., to mean a complaint before the appropriate Court. Therefore, the Police did not have jurisdiction at all to register a case and investigate the matter. The Court below ought not to have taken cognisance of the offences upon the Final Report being filed by the Police.
8. In this regard, the learned Counsel would rely upon the judgment of the Hon’ble Supreme Court of India in Salib @ Shalu @ Salim Vs. State of U.P and Ors.1, more specifically relying upon paragraphs Nos.15 to 19 of the said judgment. In the said judgment, the Hon’ble Supreme Court of India went into the factual aspect that there was no threat with reference to the giving of false evidence and, therefore, quashed the complaint.
9. As far as the legal question is concerned, in paragraph No.19 of the said judgment, the Hon’ble Supreme Court of India expressly left open the question. It is essential to extract paragraphs Nos.15 to 19 of the said judgment which reads as under:-
” 15. There is a different angle to this matter. It appears that the investigating agency has invoked Section 195A of the IPC. Section 195A of the IPC reads thus:—
“Section 195A. Threatening any person to give false evidence.—Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both; and if innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with the same punishment and sentence in the same manner and to the same extent such innocent person is punished and sentenced.”
16. A plain reading of the aforesaid provision indicates that if any individual is threatened with any injury to his person, reputation or property and such threats are administered with intent to cause that person to give false evidence, the same would constitute an offence under Section 195A of the IPC. In our opinion, none of the ingredients to constitute the offence punishable under Section 195A of the IPC are disclosed, on plain reading of the FIR and the further statement of the first informant including the statement of the so-called eye witness. The allegation in the FIR is that the accused persons threatened and pressurised the first informant to withdraw her first FIR bearing No. 122 of 2022 registered for the offences punishable under Sections 376D, 323, 120B, 354A and 452 resply of the IPC. There is nothing to indicate that the accused persons threatened the first informant with intent that the first informant gives false evidence before the Court of law. The later part of Section 195A makes it very clear that false evidence means false evidence before the Court of law. On such false evidence if a person is convicted and sentenced, then the person found guilty of administering threats would be liable to be punished with the same punishment and sentence in the same manner and to the same extent as such innocent person is punished and sentenced. The word “false” in Section 195A should be read in the context with what has been explained in Section 191 of the IPC which falls in Chapter XI – of False Evidence and Offences Against Public Justice. Thus, even if we believe the allegations levelled in the FIR to be true, none of the ingredients to constitute the offence punishable under Section 195A are disclosed. To give threat to a person to withdraw a complaint or FIR or settle the dispute would not attract Section 195A of the IPC.
17. In the aforesaid context, we must look into Section 195A of the Code of Criminal Procedure (CrPC). Section 195A of the CrPC reads thus:—
“Section 195A. Procedure for witnesses in case of threatening, etc.—A witness or any other person may file a complaint in relation to an offence under section 195A of the Penal Code, 1860 (45 of 1860).”
18. The plain reading of the aforesaid provision indicates that if a witness or any other person receives threats and such threats are administered with an intent to cause that person to give false evidence before the Court, then such witness or person can file a complaint in relation to the offence under Section 195A of the IPC. It goes without saying that such complaint has to be lodged before the Court recording the evidence. Section 195A of the CrPC provides a remedy of filing a complaint. “Complaint” means as defined under Section 2(d) of the CrPC which reads thus:—
“Section 2(d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Explanation.—A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;”
19. We are conscious of the fact that Section 195A of the IPC is a cognizable offence. In a cognizable offence, police has power to investigate. We are not going into the question whether the bar of Section 195 of the CrPC would apply to Section 195A of the IPC as we have taken the view that none of the ingredients to constitute the offence punishable under Section 195A of the IPC are disclosed in the facts of the present case.”
(emphasis supplied)
10. The learned Counsel would submit that even though the offence under Section 195A is cognizable, still, under Section 195 of Cr.P.C., unless a complaint is filed as per Section 2(d) of Cr.P.C., before the appropriate Court, cognizance of the offence under Section 195A of I.P.C cannot be taken. Even though Section 195A was inserted by Act 2 of 2006, on the same day, an amendment was also carried out under Section 195(1)(b) of Cr.P.C., and as such, it can be seen that the provision is consciously placed within the mischief of Section 195 of Cr.P.C.
11. The learned Counsel would further rely upon the judgment of the Hon’ble Supreme Court of India in M/s.Aphali Pharmaceuticals Ltd. Vs. State of Maharashtra and Ors.2, more specifically, on paragraph No.31 to contend that it is the legislative intent which has to be taken into account whenever two provisions have to be read in combination. The learned Counsel would further rely upon the judgment of the Hon’ble Supreme Court of India in Jagdish Prasad Vs. State of Rajasthan and Ors.3 to contend that the schedule of the enactment which makes it a cognizable offence, cannot override the pre-provision which is contained in Section 195 of Cr.P.C. Therefore, despite being a cognizable offence, the bar under Section 195(1)(b) will apply.
12. The learned Counsel would submit that the question is no longer res integra as the Kerala High Court considered the very question in detail in Suni @ Sunil Vs. State of Kerala in Bail Application No.556 of 2023 and it was held that the bar would apply and the Police had no jurisdiction to register a case. The learned Counsel would further rely upon the judgment of the Hon’ble Supreme Court of India in Narendra Kumar Srivastava Vs. State of Bihar and Ors.4, more specifically, to paragraphs Nos.14 to 17, where, the Hon’ble Supreme Court of India considered the effect of Sections 175 and 340 of Cr.P.C., and held that the proceedings should only be instituted by way of a criminal complaint under the said provision by appropriate Court of law.
13. The learned Counsel would further rely upon the judgment of this Court in Jeevanandham and Ors. Vs. State5, more specifically, on paragraphs Nos.16 to 18 to contend that the nature of the offence does not give a right to the Police Officer to register an F.I.R. in view of Section 195(1)(b) of Cr.P.C. Once the primary offence is bound to fail, Section 201, which is charged in the case, would also not stand in view of the judgment of this Court in Rev.Fr.Devadass Vs. State of Tamil Nadu and Anr. in Crl. O.P.(MD). No.21512 of 2018, since the allegation against the petitioner would not make out an offence under Section 201 of I.P.C. The other provisions under the Act and the POCSO Act, being consequential, should also go. Therefore, the entire case is liable to be quashed.
14. Apart from the above, the learned Counsel would also submit that even on a reading of the statements of the witnesses in the instant case, it shows that the allegation against the present petitioner, who is the wife of the first accused, is that she fell on the feet of the witnesses and requested and cried not to depose against her husband. Therefore, factually also, the offence is not made out against this petitioner. Therefore, he would submit that the Criminal Original Petition is to be allowed.
15. Per contra, Mrs.Aasha, learned Government Advocate (Crl. Side) for the respondent Nos.1 and 2, would submit that as far as the petitioner is concerned, being the wife, in support of the first accused, she went to the houses of all the victim children and together, they threatened. The threat may be in several forms. Pressurising, by using direct threats, at one stretch and falling on the feet and forcibly asking them to depose false evidence is also a kind of threat. They further pressured the child by threatening to commit suicide. Therefore, this is a case where the child was categorically threatened by the present petitioner and thereafter, directly, by the Special Public Prosecutor, on account of which, the children indeed gave false evidence that nothing happened inside the bathroom and thereafter, unable to fathom their falsity, the children once again gave their further statements and only thereafter, the present case is registered. Being a Headmaster, after committing penetrative sexual assault on the victim-children, they further indulged in threatening the witnesses and therefore, are rightly being prosecuted. Section 195A is a cognizable offence and therefore, there is no bar for the Police to investigate the matter.
16. Mr.S.Poornachandran, the learned Amicus Curiae, would submit that in this case, after committing the grave offence, knowing fully well that he would be convicted if the children deposed, the accused threatened the witnesses. The learned Amicus would rely upon the judgment of the Delhi High Court in Rahul Yadav Vs. State and Anr. in W.P.(Crl.).No.1120 of 2017, more specifically, after considering the very same arguments relating to taking cognisance of the offence under Section 195A of Cr.P.C., the Court rejected the contention. The learned Counsel would rely upon paragraph No.11, which reads as follows:-
” 11. Contention of learned counsel for the petitioner that as Section 195A Cr.P.C. prescribes the procedure for witnesses in case of threatening etc., to file a complaint in relation to an offence punishable under Section 195A IPC and as Section 2(d) Cr.P.C. defines ‘complaint’ to be other than ‘a police report’ only complaint would be entertained and no FIR can be registered deserves to be rejected.”
17. The learned Amicus Curiae would also rely upon the judgment of the Karnataka High Court in Gurunathagouda Vs. State of Karnataka and Ors. in Crl.A.No.100046 of 2019, where, the question was incidentally considered while deciding as to the maintainability of an appeal against the private complaint that is filed under Section 195A of Cr.P.C.
18. I have considered the rival submissions made on either side and perused the material records of the case. The following questions arise for determination in this petition:-
(i) Whether the respondent Police can register the First Information Report for an offence under Section 195A of I.P.C?
(ii) Whether the ingredients for the offence under Section 195A of I.P.C are made out as against the present petitioner/accused No.2 on facts?
Question No.i:-
19. At the outset, the corresponding provision for Section 195A of I.P.C is Section 232 of Bharatiya Nyaya Sanhita. The corresponding section for Section 195 of Cr.P.C., is Section 215 of Bharatiya Nagarik Suraksha Sanhita and for Section 195-A of Cr.P.C., it is Section 216 of Bharatiya Nagarik Suraksha Sanhita. Under the new law, the offence is covered by Section 215(1)(b)(i), but, the position was very different with reference to the Indian Penal Code and the Code of Criminal Procedure.
20. Section 195A of I.P.C reads as follows:-
“195A. Threatening any person to give false evidence.—Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both;
and if innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with the same punishment and sentence in the same manner and to the same extent such innocent person is punished and sentenced.”
It can be seen that the same was introduced by Act 2 of 2006 with effect from 16.04.2006.
21. Section 195 of Cr.P.C., reads as follows:-
“195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.—(1) No Court shall take cognizance—
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence,
except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii),
except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.
(2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub-section (1), the term “Court” means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the Principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:
Provided that—
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.”
(emphasis supplied)
It can be seen that Section 195 of Cr.P.C., as such, came into force from 01.04.1974.
22. There is also an amendment by the very same Act 2 of 2006 which introduced Section 195A of I.P.C to the above Section 195 of Cr.P.C., which is with reference to certain words in the clause following Section 195(1)(b)(iii) i.e., “except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.”
23. Section 195A of Cr.P.C., reads as follows:-
“195A. Procedure for witnesses in case of threatening, etc.—A witness or any other person may file a complaint in relation to an offence under section 195A of the Indian Penal Code (45 of 1860).”
It can be seen that the above provision came into the statute subsequently by Act 5 of 2009 with effect from 31.12.2009.
24. The first schedule to the Code of Criminal Procedure was also amended by the Act 2 of 2006 with effect from 16.04.2006. The same reads as follows:-
Section Offence Punishment Cognizable or non-cognizable Bailable or non-bailable By what Court triable
195-A Threatening any person to give false evidence.
If innocent person is convicted and sentenced in consequence of false evidence with death, or imprisonment for more than seven years. Imprisonment for 7 y years, or fine, or both.
The same as for the offence. Cognizable
Ditto Non-bailable
Ditto Court by which offence giving false evidence is triable.
Ditto
25. On a careful consideration of the above four provisions, it can be seen that on the day, when Section 196 of Cr.P.C., came into force, Section 195-A of I.P.C was not in the statute book. When the Parliament, in the year 2006, added Section 195-A of I.P.C, it was very much conscious of Section 195. As a matter of fact, it also brought out an amendment in one of the provisions. It is in this context, the language of Section 195 has to be taken into account.
26. On careful reading, it can be seen that there is a difference in language in Sections 195(1)(a)(i) and 195(1)(b)(i). The same are extracted, at the risk of repetition, side by side for comparison:-
Section 195(1)(a)(i) Section 195(1)(b)(i)
of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, (45 of 1860) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court
Thus, it can be seen that when it came to 195(1)(a)(i), the language is of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860). Thus, if later, at any point in time, the Parliament includes one Section between Sections 172 to 188, it would be aware that a bar would be applicable.
27. As far as the language that is contained in Section 195(1)(b)(i) is concerned, it is not simply mentioned as the offence punishable under Sections 193 to 196 (both inclusive) as in Section 195(1)(a)(i), but, the language is very different by using the words “any offence punishable under any of the following Sections of the Indian Penal Code namely”. Thus, wherever the phrase ‘namely’ is used, it is very clear that the sections mentioned therein and therein alone and therefore, subsequently, if any offence is included between Sections 193 to 196 (as in this case Section 195A), the same will never get covered by Section 195(1)(b)(i). Thus, the Parliament was very conscious of the said language, while amending the schedule of the Code of Criminal Procedure, therefore specifically making offence cognizable also.
28. At this juncture, it is useful to refer to the judgment of the Hon’ble Supreme Court of India in State of Karnataka and Ors. Vs. Balaji Computers and Ors.6, where under the Court considered the meaning of the clauses which employ ‘namely’ and held that it would be akin to ‘that is to say’ and therefore will be enumerative of what is contained alone as opposed to the phrase ‘including’. The relevant paragraphs are extracted hereunder:-
“17. For proper construction, we deem it necessary to explain how the word “namely” has been described in various dictionaries.
18. In Black’s Law Dictionary, 5th Edn., the word “namely” has been stated as
“A difference, in grammatical sense, in strictness exists between the words namely and including. Namely imports interpretation i.e. indicates what is included in the previous term; but including imports addition i.e. indicates something not included.”
19. In Webster’s Encyclopædic Unabridged Dictionary of the English Language, the word “namely” has been stated as “that is to say, explicitly, specifically to wit, on item of legislation, namely, certain bail”.
20. In Chambers 21st Century Dictionary the word “namely” has been stated as “used to introduce an expansion or explanation of what has just been mentioned”.
21. In World Book Dictionary, the word “namely” has been stated as “that is to say to wit”. Therefore, the word “namely”, ordinarily imports of what is comprised in the preceding clause; and it ordinarily serves of equating what follows with the clause described before.
22. This Court in State of Bombay v. Bombay Education Society [(1954) 2 SCC 152 : AIR 1954 SC 561 : 56 Bom LR 1211] had an occasion to examine the meaning of the words “that is to say” which have been described as “explanatory or illustrative words and not words either of amplification or limitation”.
23. In this case, while considering what is the meaning that is required to be given to the word “namely” employed in the circular issued by the State of Bombay directing that no primary or secondary school shall from the date of the order, admit to a class where English is used as a medium of instruction any pupil other than a pupil belonging to a section of citizens the language of which is English wherein it is explained by stating “namely” Anglo-Indians and citizens of non-Asiatic descent has observed that ordinarily the word “namely” imports enumeration of what is comprised in the preceding clause and it ordinarily serves the purpose of equating what follows with the clause described before. Further, the word “namely” has also been explained in the said decision and also in Oxford English Dictionary as “that is to say”. In this connection, it is useful to refer to the observation made by the Court in para 12 of the judgment which reads as under: (Bombay Education Society case [(1954) 2 SCC 152 : AIR 1954 SC 561 : 56 Bom LR 1211] , AIR p. 565)]
“12. Re (1): As already indicated Barnes High School is a recognised Anglo-Indian School which has all along been imparting education through the medium of English. It receives aid out of State funds. The daughter of Major Pinto and the son of Dr. Gujar are citizens of India and they claim admission to Barnes High School in exercise of the fundamental right said to have been guaranteed to them by Article 29(2) of the Constitution. The School has declined to admit either of them in view of the circular order of the State of Bombay. The provisions of the circular order, issued by the State of Bombay on 6-1-1954, have already been summarised above.”
29. Thus, the Parliament had enumerated the Sections with the phrase namely, then the said Sections alone will fall within the ambit of 195(1)(b)(i) and nothing else can be impliedly brought in. Being conscious of the said fact, subsequently, in the year 2009, a specific provision with reference to Section 195-A of IPC in the form of 195-A Cr.P.C was included in the Code of Criminal Procedure, which is extracted above. Though that is an enabling provision for the witness or any other person to file a complaint, it does not contain the negative embargo that the offence cannot be taken cognizance of except by way of a complaint. Thus, the parliament in its wisdom, had made it cognisable and also made a special provision for filing a complaint both by the witness concerned or any other person. Therefore, I am of the view that a bar under Section 195(1)(b)(i) of Cr.P.C., is not applicable to the offence under Section 195-A of the Indian Penal Code, and consequently, the respondent Police rightly registered a First Information Report and investigated into the matter and file a Final Report as it is a cognisable offence.
30. As far as the judgment of the Kerala High Court in Salib @ Shalu @ Salim’s case (cited supra) is concerned, I respectfully disagree with the same inasmuch as the Kerala High Court omitted to consider the difference in language between Section 195(1)(a)(i) and 195(1)(b)(i) and omitted to take note of the specific language that is used i.e., “any of the following Sections in the Indian Penal Code namely” and did not consider the import of the same.
31. It can be seen that the Delhi High Court in Rahul Yadav’s case (cited supra), took a view that First Information Register can be registered. I have also considered the judgment of the Delhi High Court in Amandeep Gill and Anr. Vs. State Govt. of NCT of Delhi7 and the judgment of the High Court of Allahabad in Sumit and Anr. Vs. State of U.P and Ors.8 which was with reference to Section 174A of I.P.C which is with reference to Section 195(1)(a)(i) of Cr.P.C. Therefore, the language of Section 195(1)(a)(i) and 195(1)(b)(i) are very much different and therefore, the same cannot be applied. Accordingly, I answered the question that the First Information Report, which was registered in the instant case, is in order.
Question No.ii:-
32. On the facts of the case, it cannot be said that the petitioner never threatened the witnesses. By visiting the home, by uttering the words that they would commit suicide, by taking them along with the first accused to the third accused, the petitioner had very much threatened the witnesses and as such, the contention of the learned Counsel for the petitioner that she only fell on the feet and did not threaten the witnesses, cannot be countenanced. The threat can be in many forms. A tender child will be threatened if an adult, like the petitioner, falls at her feet. Further, the petitioner threatened to commit suicide. Threat shall mean the threat of any form. Therefore, I reject the submission made by the learned Counsel for the petitioner and hold that if the evidence of the affected children read on whole, it prima facie makes out an offence even as against the petitioner herein, and accordingly, I answer the question.
33. For all the above reasons, this Criminal Original Petition shall stand dismissed. Consequently, connected miscellaneous petition is closed.
29.11.2024
Neutral Citation : yes
grs
To
1. The Special Court for Trial of Cases
under the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989, Sivagangai.
2. The Deputy/Assistant Superintendent of Police,
Sivagangai District.
3. The Inspector of Police,
All Women Police Station,
Sivagangai.
4. The Public Prosecutor,
High Court of Madras.
D.BHARATHA CHAKRAVARTHY, J.
grs
Crl.O.P.(MD).No.2560 of 2021
and Crl.M.P.(MD).No.1335 of 2021
29.11.2024
