Punjab & Haryana HC Rules S.174A IPC On Proclaimed Offenders Included U/S 195 CrPC, Cites "Bhartitya Nayaya Sanhita" To Fortify View

The Punjab and Haryana High Court has held that even though Section 195 CrPC was not amended to include within its ambit Section 174A IPC, which was introduced in 2005 to criminalise non-appearance of proclaimed offenders at the specified place and time, the provision has to be read inclusive of Section 174A.

This implies that no Court shall take cognizance of any offence punishable under Section 174A IPC, except on the complaint in writing of the public servant (including a Judge) under Section 195 CrPC.

The Court held, "introduction of Section 174-A into the IPC was accompanied by a corresponding amendment in Schedule 1 of the Cr.P.C. This amendment classified the aforementioned offence as cognizable. However, Section 195 of the Cr.P.C. was consciously not amended correspondingly to exclude Section 174-A from its ambit"

To fortify its view, the Court cited corresponding provisions of the "Bhartiya Nagrik Suraksha Sanhita Bill 2023" which is proposed to replace the IPC and is currently pending with the Parliamentary Standing Committee.

Section 174-A IPC and corresponding Section 207 of the Bhartiya Nagrik Suraksha Sanhita Bill are verbatim but the Bill proposes to take Section 207 out of the purview of Section 215, which is corresponding to Section 195 of CrPC.

"It is unmistakably evident that the omission of Section 174-Afrom the purview of Section 195 of the Cr.P.C. cannot be treated as a mere inadvertent oversight. Thus, in its current state, Section 195 of Cr.P.C., unequivocally encompasses Section 174A of the Indian Penal Code (IPC) within its legal framework. The earlier absence of corresponding amendment did perhaps give rise to a measure of bewilderment. However, the said conspicuous absence of a corresponding modification to Section 195 Cr.P.C. has now drawn the attention of the legislature in the form of the currently contemplated Bill," Court said.

On the basis of above reasoning, the Court also disagreed with the Delhi High Court's judgment in Maneesh Goomer v/s Govt. of NCT (2012) which held that Section 195 CrPC has not been correspondingly amended so as to include Section 174-A IPC, as the Legislature was conscious of the fact that the offence (under Section 174-A IPC) is cognizable.

Court said Section 188 of IPC is also a cognizable offence and yet it was and is still specifically covered by Section 195 CrPC.

Court further illustrated that non-inclusion of Section 174-A of IPC into the ambit of Section 195 of CrPC would create legal inconsistency:

"Imagine an individual accused of an offense falling under Section 174-A of the IPC. Being an offense classified as cognizable, the police have the authority to arrest the accused without a warrant. However, Section 195 of the Cr.P.C. bars any Court from taking its cognizance except on the complaint in writing made by the Court/Public servant concerned. This creates an anomalous situation where an individual who is accused under Section 174-A IPC could potentially be arrested without a warrant, yet the legal requirement for his prosecution for such an offense is by way of filing a complaint under Section 195 of the Cr.P.C."

Court said statutory insistence of filing of complaint by public servant/court concerned is in tune with fundamental right to personal liberty as enshrined under Article 21 of the Constitution of India. 

"Personal liberty of an individual is given paramount consideration,given that an individual who is declared as proclaimed person or offender, as the case may be, is a mere suspect/under trial and not yet a declared culprit. He is also equally entitled to procedural protection in exercise of his fundamental right under Article 21...Thus the incongruity ought not to result in an asymmetry of rights and due process. Such an inconsistency underscores the critical need for clarity in legislation and ascertaining its intent through judicial interpretation in matters affecting personal liberty and justice."

Court further reasoned that any benefit arising from inadvertence or oversight of the legislature would accrue to the advantage of the accused, rather than the prosecution. 

Accordingly, it held that if the Magistrate, in the facts and circumstances of the case, desired to proceed against the petitioner for an offence under Section 174-A of IPC, the prescribed course for him was to institute a complaint in writing in the competent jurisdictional Court.

"Instead of that, the learned trial Court adopted a short but wrong cut and just sent a copy of his orders to the local police for initiation of proceedingsunder Section 174-A against the petitioner (obviously by registration of an FIR). In my opinion, the orders passed and sent to the local police by the learned Magistrate directing for initiation of proceedings under Section 174-A against the petitioner and the impugned FIR,Annexure P-1, registered thereupon at Police Station, City, Rajpura are in violation of the relevant provisions of Section 195 of the Code, under which a criminal complainant had to be filed by the learned Magistrate in the jurisdictional Court."

Court thus quashed the proceedings against the petitioner.

Appearance: Prashant Bansal, Advocate for petitioner.

Dhruv Dayal, Additional A.G., Punjab.

Sumit Dua, Advocate for respondent No. 2.

Citation: 2023 LiveLaw (PH) 181