Section 195(2) CrPC vs Section 217 IPC
1. I am an army officer approaching you for legal advice. In army every order which a staff officer passes is on the behalf of the commander. I have been looking after the land matters of Army. During performance of my staff duties I approached the Defence Estate Officer (DEO) under the Department of Director-General Of Defence Estate (a different department under Ministry of Defence) for the assistance. The DEO is legally bound to provide technical advice in the matter of land management to military authorities. There are almost ten different occasions/incidents, where in the technical assistance was sought from DEO over a period of a year where he failed to provide the same. The Department of DGDE is famous for not rendering the assistance, even what they are supposed to provide as per the law. I reported the matter about these incidents under the offence of section 187 of IPC to my head of the Department and recommended for sanction to be taken under section 197 CR PC for the offence committed by DEO. There was one incident wherein he did not report to the duly promulgated order of the station commander of the Rank of Brigadier performing the duties of Estate Officer under public Premises(Eviction of unauthorised occupants) act 1971, wherein under section 8 of the said act, the estate Officer has powers of the civil court to summon witnesses, examine them on oath and asked for production of the documents. This was such an offence under section 174 IPC and was also reported. While reporting the attention of the head of the department was also drawn to the section 202 IPC(intentional omission to give information of offence by person born to inform) and section 217 IPC(public servant disrobing direction of law with the intent to save person from punishment or property from forfeiture). In addition, I also requested for taking up the case with the concerned department for simultaneous departmental action under CCS rules 1964 against DEO for delay in the decision-making. On a separate official noting sheet, it was also brought out that section 174 IPC and one 187 IPC are both non-compoundable offences.
2. Despite all this, I got the reply from my head of the Department that the matter has been discussed by his boss organised centrally in a conference with DEO on a prior date, even before I have made the complaint and DEO has been apprised of the poor response and suitable actions are being taken to ensure synergy and coordination with DEO to learn all pending issues. I'm of the opinion that my head of the Department is trying to save DEO from punishment and this action attracts the provisions of section 217 IPC. I have my doubts whether he has reported to his senior under the provisions of section 202 IPC, though he may say that he had reason to believe that no offence has been committed.
3. I want to report the matter to the magistrate under section 217 IPC against my head of the Department but the problem is clashing provisions of clause (2) of section 195 CRPC, which mentions , quote, “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.” Unquote. This way anybody who is bounded by law may refuse to provide assistance, when the matter was reported by a public servant and his senior may withdraw the complaint and the offender escapes the clutches of the law. I suppose this would not have been the intention of the legislature while framing the law. Though in the case of UNION OF INDIA THROUGH MAJOR GENERALH.C. PATHAK Vs.RESPONDENT: MAJOR S.K. SHARMA, the Supreme Court of India upheld the decision of the magistrate to have taken cognizance against BRIG Randhawa for an offence under section 217 IPC, but here's the question was not of parallel clashing provisions of clause (2) of section 195 CRPC.
4. Please advise appropriately as to if the magistrate is likely to take cognizance under section 217 IPC against my head of the Department in view of existing parallel provision in the form of clause (2) of section 195 CRPC and can I proceed further in reporting the matter to the magistrate.
Asked in Criminal Law from BAGDOGRA, West Bengal
1) you should not make the mistake of filing complaint against your superior officer under section 217 of IPC
2) you have diligently brought to notice of your superiors non cooperation by the DEO
3) you have received written reply that hat the matter has been discussed by his boss organised centrally in a conference with DEO on a prior date, even before your complaint and DEO has been apprised of the poor response and suitable actions are being taken to ensure synergy and coordination with DEO to learn all pending issues.
4) you have done your duty. filing complaint against your boss would be counter productive
5) if you file complaint under section 217 of IPC your seniors may with draw complaint under section 195(2) of Cr pc
6) your complaint would not result in any action . better dont file any such complaint
The magistrate in all likelihood will refuse to take cognizance of this, in which event you will have to approach the High Court for necessary relief. The HC can rise to the occasion to ensure that the guilty does not go unpunished.