The Court drew strength from an earlier decision of the SC in Daulat Ram v. State of Punjab [Daulat Ram v. State of Punjab, AIR 1962 SC 1206 : (1962) 2 Cri LJ 286] where it was held that in order to prosecute an accused for an offence punishable under Section 182 IPC, it is mandatory to follow the procedure prescribed under Section 195 of the Code else such action is rendered void ab initio.
The Court went on to quote the relevant extracts from Daulat Ram (supra) :
“There is an absolute bar against the court taking seisin of the case under Section 182 IPC except in the manner provided by Section 195 CrPC. Section 182 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. The offence under Section 182 is complete when a person moves the public servant for action. Where a person reports to a Tahsildar to take action on averment of certain facts, believing that the Tahsildar would take some action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be launched, that the complaint in writing should be made by the Tahsildar, as the public servant concerned under Section 182, and not leave it to the police to put a charge-sheet. The complaint must be in writing by the public servant concerned. The trial under Section 182 without the Tahsildar’s complaint in writing is, therefore, without jurisdiction ab initio.”
The Court went on to hold :
“11. It is not in dispute that in this case, the prosecution while initiating the action against the appellant did not take recourse to the procedure prescribed under Section 195 of the Code. It is for this reason, in our considered opinion, the action taken by the prosecution against the appellant insofar as it relates to the offence under Section 182 IPC is concerned, is rendered void ab initio being against the law laid down in Daulat Ram [Daulat Ram v. State of Punjab, AIR 1962 SC 1206 : (1962) 2 Cri LJ 286] quoted above.
12. The learned counsel for the respondent (NCT, Delhi), however, submitted that the State has, therefore, made a fresh application in this behalf before the trial court which, according to him, is still pending consideration. Be that as it may.
13. We express no opinion on such application, if it is filed by the State as, in our view, it has to be dealt with on its own merits in accordance with law by the court concerned.
14. In the light of foregoing discussion, the appeals succeed and are allowed. The impugned orders [Saloni Arora v. State, 2015 SCC OnLine Del 14460] , [Saloni Arora v. State, 2016 SCC OnLine Del 6566] stand set aside.”
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Very nice ander writing
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