'Cannot Assume Careless Omission By Legislature': Delhi HC Holds Section 174-A IPC To Fall Within Bar Of Section 195 Cr.P.C

The Court noted that Section 174-A, which penalizes the non-appearance of a proclaimed offender at a specified time and place, was added through an amendment in 2005 and came into effect in 2006. It further noted that Section 195 Cr.P.C. has been the statute book since 1973 and includes Section 172-188 IPC.

It stated, “Therefore, on the date when section 174-A of IPC was inserted, if the legislature had to exclude it out of purview of section 195 Cr.P.C, it would have included that provision.”

The Court observed that one cannot assume a careless omission by the legislature and fill in by judicial interpretation. It noted that the rule of strict and literal interpretation of statutes would prevail.

A single-judge bench of Justice Anish Dayal was considering the petitioners' challenge to the Session Court's order, which dismissed their revision petition. The petitioners had challenged the order of the Magistrate, which framed charges against them under Section 174-A of IPC.

The petitioners' had contended that cognizance of an offence under Section 174-A IPC could only have been taken on a complaint in writing by the concerned public servant and that the bar under Section 195(1)(a)(i) Cr.PC would apply.

The Sessions Court relied on the case of Maneesh Goome vs. State (2012), where single bench of the Delhi High Court held that Section 174-A IPC was not covered by the bar of Section 195 Cr.P.C. It was observed that Section 195 Cr.P.C. was not correspondingly amended to include Section 174-A IPC which was brought into with effect from 2006, and that the Legislature was conscious that though all other offences under Chapter X of CrPC are non cognizable, offence punishable under Section 174-A IPC is cognizable.

Here, the petitioner's counsel argued that Maneesh Goomer incorrectly noted that offences prescribed under Section 195 C.r.P.C are all non-cognizable. The counsel thus contended the test to determine whether Section 174-A would fall within the bar contained in 195 Cr.P.C., is not relatable to whether the offence is cognizable or not.

The High Court referred to the Supreme Court case of C. Muniappan & Ors v State of Tamil Nadu (AIR 2010 SC 3718), where the Apex Court reiterated that law does not permit taking cognizance of an offence under Section 188 IPC in absence of a complaint by a public servant, in view of the bar under Section 195 C.r.P.C.

Referring to this case, the High Court noted “Therefore, logically and fundamentally, Section 188 IPC being cognizable, the same reasoning would also apply to an offence under Section 174-A IPC, which is also cognizable.” It further noted “Even though, the Supreme Court in C. Muniappan (supra) does not deal with Section 174-A directly, it would be difficult to draw an artificial distinction between Section 174-A IPC and Section 188 IPC, despite both being covered in the category of Sections 172-188, in Section 195(1)(a)(i) Cr.P.C.”

The Court noted that in Maneesh Goomer, the Court did not take into account the decision of C. Muniappan and that an independent analysis and interpretation were done. It stated that the interpretation of Maneesh Goomer would be difficult to support in view of C. Muniappan.

Additionally, the Court referred to the recently introduced acts of BNS and BNSS, which replaced IPC and CrPC. It noted that the equivalent provision of 174-A IPC (Section 209 BNS has been excluded from the equivalent provision of Section 195 Cr.P.C (Section 215 BNSS).

It remarked, “It could be argued that, since now the legislature has sought to exclude the equivalent of Section 174-A IPC, the legislative intent even prior to BNS and BNSS was the same, although not specified in the statute in IPC/Cr.P.C. This, however, will remain in the realm of legislative speculation and it would be encroaching upon the legislative function by providing such interpretation by judicial dicta, which is not permissible.”

The Court thus set aside the order of the Sessions Court.

Case title: AMANDEEP GILL & ANR vs. THE STATE GOVT OF NCT OF DELHI (CRL.M.C. 5219/2017 & CRL. M.A. 20512/2017)