ORDER
1. Being aggrieved by the order dt. 18-7-96 directing to issue process to the petitioner for the offence punishable under Section 193, I.P.C. in P.C.R. No. 52/96 (C.C. No. 613/96) the petitioner filed this petition.
2. Heard.
3. The learned counsel for the petitioner at the very outset submitted that there is a bar to take cognizance of the offence alleged against this petitioner under Section 195(1)(b)(i), Cr. P.C. To appreciate the argument it is necessary to succinctly put the facts of the case which are :
That the petitioner is running a private nursing home in Tiptur. One Smt. Mahalakshmi approached this petitioner for treatment due to some ailment. It appears that the petitioner has diagnosed it to be cancer and adviced her to go to Kidwai Hospital at Bangalore. After several days the said Mahalakshmi died. It is alleged that she had 2 LIC policies herein the respondent was nominated. After her death when the respondent approached the LIC they declined to satisfy the amount due under those policies on the ground that the policy holder obtained policies by suppressing certain material particulars specially the disease with which she was suffering. As the amount was denied, the respondent approached the Dist. Consumer Redressal Forum, Tumkur, which was raged as DCFT 284/95, against the LIC of India. The matter is still pending in the District Forum. Before the matter was concluded, she approached the Criminal Court under Sec. 200, Cr. P.C.
4. The argument of the learned counsel for the petitioner is that where the offence is alleged under S. 193 the complaint has to be lodged by the Court which is dealing with the matter. The question arises as to whether the District Forum is a Court. To substantiate that argument, he has drawn my attention to Sec. 13 of Consumers Protection Act, 1986. Sub-sec. (4) of Sec. 13 reads :
'For the purposes of this section, the District Forum shall have the same powers as are vested in a Civil Court under the CPC, 1908 while trying a suit in respect of the following matters, viz. :-'
(they are enumerated in sub-clauses (i) to (vi). Sub-section (5) clearly provides :
'Every proceeding before the District Forum shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860) and the Dist. Forum shall be deemed to be a Civil Court for the purposes of S. 195 and Chapter XXVI of the Cr. P.C., 1973 (2 of 1974).'
To put it shortly, the matter is pending before the Civil Court which has to decide as to whether the petitioner has wrongfully issued a certificate against the interest of this respondent to constitute an offence.
Similarly in : [1989]176ITR1(SC) , Baliram v. Justice B. Lentin Their Lordships have held :
'Sub-sec. (3) of S. 195 of the Code provides that in Cl. (b) of sub-sec. (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.'
5. The definition of 'Court' in the first part of S. 195(3) of the Code is therefore restrictive while the second is inclusive. It is contended that the definition if a woman may either be restrictive of its ordinary meaning or it may be extensive of the same. Sometimes, definition of a term contains the words 'means and includes' which may inevitably raise a doubt as to interpretation. According to the learned Advocate-General, the inclusive part of the definition of 'Court' in S. 195(3) of the Code was ex abundanti cautela and was merely declaratory of the law. It is submitted that the first part of sub-sec. (4) of S. 5 of the Act fulfils the requirements of the inclusive part of the definition of 'Court' in S. 195(3) of the Code. Therefore, the Act was in line with sub-sec. (3) of S. 195 of the Code, there was no occasion for Parliament to effect an amendment of the Act, particularly having regard to the majority decision in Lalji Haridas' case, : 1964CriLJ249 . For the foregoing reasons, it can be held that the District Forum is a Court.
6. Admittedly the complainant has approached the Consumers' Forum at Tumkur and the matter is pending in DCFT 284/95 against the LIC of India. In that proceeding, the LIC of India produced the prescription alleged to have been given by the petitioner herein. According to the complainant, the said prescription is totally false and the said Mahalakshmi had not taken any treatment with the accused at any point of time. Therefore, the main question that was involved in that case was as to whether Mahalakshmi had approached the petitioner for treatment and that whether he had issued the prescription which was produced by the LIC and if issued, whether that prescription is a false one are the issues involved in that case. Therefore, the complainant gets the cause of action to proceed, if any, against the petitioner, only after the said District Forum which is held to be a 'Court' decided the matter in favour of this complainant or it is for the District Forum to take action as contemplated under the provisions of law.
7. Therefore, as rightly pointed out by the learned counsel for the petitioner, the respondent has filed complaint contrary to the provisions of law and the said complaint also is premature. In S. H. Taralagatti v. Director General, All India Radio, ILR 1994 Kant 3478, this Court has held :
'Sections 195 and 340, Cr. P.C. are supplementary to each other and they must be read together. Section 195 describes the offences in respect of which a complaint is necessary and S. 340(1) prescribes the procedure under which a complaint is to be made.'
It is further held :
'The objects of the law in requiring a complaint from the Court or authority concerned are (i) to protect persons from criminal prosecutions by persons actuated by malice, hatred or illwill; (ii) to insist on there being prosecutions only when the interests of public justice render it necessary and to protect prosecutions when public interest cannot be served; (iii) to protect persons from prosecutions only when the Court after due consideration is satisfied that there is proper case to put a party on his trial.'
Further in Ismail Khan v. State of Karnataka, (1991) 4 Kant LJ 262 : (1992 Cri LJ 3566) this Court has held that in that case there was no complaint filed for the offence u/S. 193, I.P.C. by the Court. Therefore, this Court has held that the learned Magistrate was not competent to take cognizance of the offence under Sec. 193, I.P.C. and proceed to record the plea of the petitioner. The proceedings initiated under Sec. 193 were quashed. In : 1969CriLJ645 it is held that no cognizance can be taken by the Magistrate for the alleged offence u/S. 193, I.P.C.
8. In this case also, prosecution for offences under Sec. 193, I.P.C. were initiated by the complainant and not by any Court or a public servant. As contemplated under sub-cl. (i) of sub-sec. 1(b) of S. 195, Cr. P.C. if the complaint came to be filed without there being a case pending in the Court, the matter would have been different. On the other hand, the very same issue is pending before the District Forum for consideration though this petitioner is not a party to the proceedings. It is clear that the discretion exercised by the learned Magistrate in issuing process is capricious and arbitrary and such complaint suffers from fundamental legal defect. The complaint also does not disclose the essential ingredient of alleged offence under Sec. 193 of the Act (Code). For the foregoing reasons, I hold that the petition deserves to be allowed.
Accordingly, the petition is allowed and the impugned order is set aside. The complaint stands dismissed and the petitioner is discharged.
9. Petition allowed.