Criminal Misc. No. M-49179 of 2003 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Criminal Misc. No.49179-M of 2003 (O&M)
Date of Decision:03.07.2008
Babita
…..Petitioner
Vs.
State of Punjab and another
…..Respondents
CORAM:- HON’BLE MR. JUSTICE RAJESH BINDAL
Present:- Ms. Supriya Jaswal, Advocate for the petitioner.
Mr. Anter Singh Brar, DAG, Punjab.
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RAJESH BINDAL J.
The prayer in the present petition filed under Section 482
Cr.P.C is for quashing kalendra filed under Section 182 IPC vide rapat
No.55 dated 3.7.2003 by SHO, Police Station, Model Town, Ludhiana and
all proceedings subsequent thereto with a further direction for re-
investigation in FIR No.432 dated 24.10.2002 registered under Sections
323/341/506 IPC at Police Station Model Town, Ludhiana by some senior
officer.
Briefly, the facts as stated in the petition are that the petitioner
with her mother Baljit Kaur started orchestra party in the year 1990 with one
Sagir Hussain in the name of `Babita Sagir and Party’. They worked
together for about three years. However, due to the fact that Sagir Hussain
had been keeping bad eyes on the petitioner, the parties separated their
business. Still Sagir Hussain continued harassing the petitioner and her
mother. He had been putting pressure on the petitioner to join his group.
On refusal, false cases were filed against the petitioner. On 17.10.2002,
when the petitioner and her mother were returning after attending the Court
at Malerkotla, where a false complaint has been filed by Sagir Hussain
against them, they were followed by Sagir Hussain. When the petitioner
reached near Garha Market, Ludhiana, Sagir Hussain stopped his vehicle
ahead of the vehicle of the petitioner. He gave beating to the driver of the
petitioner’s vehicle and hurled filthy abuses to the petitioner and her sisters
Krishma, Reshama and threatened to kidnap them. After this occurrence, a
Criminal Misc. No. M-49179 of 2003 (O&M) -2-
written complaint was filed to the SSP, Ludhiana on 23.10.2002. It is
further stated that as Sagir Hussain is a very influential person of
Malkerkotla, he interfered in the investigation of the FIR and got a
cancellation report prepared. The cancellation report was presented before
the Lok Adalat on 26.4.2003. However, on consideration of the objections
raised by the petitioner showing dissatisfaction to the report, the learned
Presiding Officer, Lok Adalat remitted the matter back to the Station House
Officer, Model Town, Ludhiana. Before even the of cancellation report,
with his influence Sagir Hussain got the impugned kalendra prepared and
filed against the petitioner under Section 182 IPC. It is this kalendra, which
is impugned in the present petition.
Learned counsel for the petitioner submitted that the filing of
kalendra against the petitioner when even the investigation was still pending
before the police after having been returned by the Lok Adalat shows bias
approach of the prosecution to harass the petitioner. Further it is submitted
that even if it is found that the kalendra was maintainable at this stage still
the same was not competent for the reason that the complaint was
admittedly made by the petitioner to the SSP, Ludhiana whereas the
kalendra was filed with the Court under the signatures of the SHO, Police
Station, Model Town, Ludhiana. Reliance has been placed upon judgments
of this Court in Jarnail Singh v. State of Punjab and another, 1983(1)
Chandigarh Law Reporter 719; Vinod Kumar v. State of Haryana, 1999
(3) RCR (Criminal) 323 and Sardari Lal v. State of Punjab, 1992(2) RCR
(Criminal) 13.
The stand of the State in the reply filed is that on inquiry,
cancellation report was prepared on 5.12.2002 and was presented in the
Court of Illaqa Magistrate and the same had not been accepted so far. He,
on instructions from Hira Singh, ASI further submitted that on account of
objections raised by the petitioner to the cancellation report, the same was
not accepted by the learned Magistrate and the matter has been remitted
back for further investigation.
Once the parties are not in dispute with regard to the fact that
the complaint made by the petitioner on the basis of which FIR No.432
dated 24.10.2002 was registered against Sagir Hussain is still pending
investigation with the police and it is yet to be established that the same is
Criminal Misc. No. M-49179 of 2003 (O&M) -3-
false.
In Ramesh Chand v. State of Haryana, 2006(4) RCR
(Criminal) 718, this Court quashed the proceedings initiated by the police
under Section 182 IPC in the facts where, though the police on investigation
found the allegations made by the complainant to be false, but on a
complaint filed by the complainant on the same allegations, the accused had
been summoned. Accordingly, it was opined that at that stage it could not
be said that the complaint made by the petitioner was totally false. To
similar effect is the judgment of this Court in Tarlochan Singh v. State of
Punjab, 2007(3) RCR (Criminal) 791.
Keeping in view the facts of the present case, where the final
opinion by the Court is yet to be expressed as regard the falsity of the
complaint made by the petitioner, permitting the respondents to proceed
with the proceedings under Section 182 IPC would amount to pre-judging
the complaint filed by the petitioner. The same is pre-mature and would
amount to abuse of process of law. It would be proper, to secure the ends of
justice, to quash the proceedings against the petitioner.
As far as second contention of counsel for the petitioner
regarding the kalendra being incompetent on the ground that the same has
been filed under the signatures of SHO, Police Station, Model Town,
Ludhiana whereas the complaint was made to SSP, Ludhiana is concerned,
the issue has been considered in detail by this Court in Criminal Misc.
No.60096-M of 2004 (Surjit Singh v. State of Punjab) decided on
6.2.2008, wherein relying upon judgment of Hon’ble the Supreme Court in
Daulat Ram v. State of Punjab, AIR 1962 Supreme Court 1206, it has
been opined that if the prosecution is to be launched under Section 182 IPC,
the complaint in writing should be made by the public servant concerned
and not by any other person. Paras 3 and 4 of the judgment can be referred
for reference which read as under:-
“3. The only question in this case is whether a complaint in
writing as required by S.195 had been presented by the
public servant concerned. The public servant who was
moved by the appellant was undoubtedly the Tehsildar.
Whether the appellant wanted the Tehsidar to take
action or not, the fact remains that he moved the
Criminal Misc. No. M-49179 of 2003 (O&M) -4-
Tehsildar on what is stated to be a false averment of
facts. He had charged Hans Raj and Kans Raj with
offences under the Penal Code and he had moved his
superior officer for action even though he might have
stated in the letter that it was only for his information.
We are prepared to assume that he expected that some
action would be taken. In fact his second letter that he
had compromised the matter and the proceeding might be
dropped clearly shows that it anticipated some action on
the part of his superior officer. The question is therefore
whether under the provisions of S.195, it was not
incumbent on the Tehsildar to present a complaint in
writing against the appellant and not leave the court to be
moved by the police by putting in a charge-sheet. The
words of S.195 of the Criminal Procedure Code are
explicit. The section read as follows:-
“(1) No Court shall take cognizance-(a) of any offence
punishable under Ss.172 to 188 of the Indian Penal
Code. except on the complaint in writing of the
public servant concerned, or of some other public
servant to whom he is subordinate; ………………….”
The words of the section, namely, that the complaint has
to be in writing by the public servant concerned and that
no court shall take cognizance except on such a
complaint clearly show that in every instance the court
must be moved by the appropriate public servant. We
have to decide therefore whether the Tehsildar can be
said to be the public servant concerned and if he had not
filed the complaint in writing, whether the police officers
in filing the charge sheet had satisfied the requirements
of S.195. The words “no court shall take cognizance”
have been interpreted on more than one occasion and
they show that there is an absolute bar against the court
taking seisin of the case except in the manner provided
by the section.
Criminal Misc. No. M-49179 of 2003 (O&M) -5-
4. Now the offence under S.182 of the Penal Code, if any,
was undoubtedly complete when the appellant had
moved the Tehsildar for action. Section 182 does not
require that action must always by taken if the person
who moves the public servant knows of believes that
action would be taken. In making his report to the
Tehsildar therefore, if the appellant believed that some
action would be taken (and he had no reason to doubt
that it would not) the offence under that section was
complete. It was therefore incumbent, if the prosecution
was to be launched, that the complaint in writing should
be made by the Tehsildar as the public servant concerned
in this case. On the other hand what we find is that a
complaint by the Tehsildar as the public servant
concerned in this case. On the other hand what we find
is that a complaint by the Tehsildar was not filed at all,
but a charge sheet was put in by the Station House
Officer. The learned counsel for the State Government
tries to support the action by submitting that S.195 had
been complied with inasmuch as when the allegations
had been disproved, the letter of the Superintendent of
Police was forwarded to the Tehsildar and he asked for
“a calendar.” (Sic This paper was filed along with the
charge sheet and it is stated that this satisfies the
requirements of S.195. In our opinion, this is not a due
compliance with the provisions of that section. What
the section contemplates is that the complaint must be in
writing by the public servant concerned and there is no
such compliance in the present case. The cognizance of
the case was therefore wrongly assumed by the court
without the complaint in writing of the pubic servant
namely the Tehsildar in this case. The trial was thus
without jurisdiction ab initio and the conviction cannot
be maintained.”
Criminal Misc. No. M-49179 of 2003 (O&M) -6-
In State of U.P. v. Mata Bhikh & Others, (1994) 4 SCC 95
following the judgment of Daulat Ram’s case (supra), Hon’ble the
Supreme Court opined as under:-
“A cursory reading of Section 195(1)(a) makes out that in case
a public servant concerned who has promulgated an order
which has not been obeyed or which has been disobeyed, does
not prefer to give a complaint or refuses to give a complaint
then it is open to the superior public servant to whom the
officer who initially passed the order is administratively
subordinate to prefer a complaint in respect of the disobedience
of the order promulgated by his subordinate. The word
`subordinate’ means administratively subordinate, i.e., some
other public servant who is his official superior and under
whose administrative control he works.”
Similar view has been expressed by Hon’ble the Supreme Court
in a recent judgment in P.D.Lakhani and another v. State of Punjab and
others, 2008 AIR SCW 3357 relying upon its earlier judgment in Daulat
Ram’s case (supra) and Mata Bhikh’s case (supra). Relevant para thereof
is extracted below:-
“No complaint, therefore, could be lodged before the
learned Magistrate by the Station House Officer. Even
assuming that the same was done under the directions of Senior
Superintendent of Police, Jallandhar, Section 195, in no
uncertain terms, directs filing of an appropriate complaint
petition only by the public servant concerned or his superior
officer. It, therefore, cannot be done by an inferior officer. It
does not provide for delegation of the function of the public
servant concerned.
We may notice that in terms of sub-section (3) of Section
340 of the Code, a complaint may be signed by such an officer
as the High Court may appoint if the complaint is made by the
High Court. But in all other cases, the same is to be done by
the presiding officer of the court or by such officer of the court
as it may authorize in writing in this behalf. Legislature, thus,
wherever thought necessary to empower a court or public
Criminal Misc. No. M-49179 of 2003 (O&M) -7-
servant to delegate his power, made provisions therefor. As the
statute does not contemplate delegation of his power by the
Senior Superintendent of Police, we cannot assume that there
exists such a provision. A power to delegate, when a complete
bar is created, must be express; it being not an incidental
power.”
Even on this ground, the case set up by the petitioner deserves
acceptance as admittedly the complaint was filed before the SSP, Ludhiana
whereas kalendra was presented under the signatures of SHO.
For the reasons mentioned above, the impugned kalendra
Annexure P.1 presented to the Magistrate and all proceedings subsequent
thereto are quashed.
The petition is disposed of.
July 03, 2008 ( RAJESH BINDAL )
renu JUDGE
( Refer to Reporter )