JUDGMENT
Rajesh Bindal, J.
1. The challenge in the present petition is to the calendra dated October 22, 2000 filed by the Assistant Sub Inspector of Police Post Shimlapuri under Section 182 of the Indian Penal Code (for short`IPC).
2. Briefly the facts as stated in the petition are that the petitioner sent complaints dated 22.5.2000 and 8.6.2000 to the Senior Superintendent of Police for registration of the case against one Swaran Singh under Sections 420, 465, 467, 468, 471 IPC alleging that his signatures were obtained on the blank papers by Swaran Singh who converted the same into a general power of attorney in favour of his wife Harjit Kaur. Resultantly both Swaran Singh and his wife in connivance with each other grabbed the plot measuring 100 sq.yards on the basis of forged and fabricated general power of attorney which was never signed by the petitioner. The complaint was marked by the Senior Superintendent of Police to the Deputy Superintendent of Police for investigation who on inquiry found the complaint to be false. It is further submitted that in fact, the petitioner-complainant had filed an application before the Deputy Superintendent of Police, Ludhaina dated 12.6.2000 stating that he does not wish to pursue the complaints as the matter between the parties had been compromised with the intervention of the respectables. After the complaint filed by the petitioner was found to be false, DDR No. 7 dated October 22,2000 was recorded under Section 182 IPC and a calendra was presented in the Court of competent jurisdiction under the signatures of Ravinder Singh, ASI Police post Shimlapuri, Ludhiana. The petitioner thereafter filed an application for discharge before the Court below. According to the counsel for the petitioner, it is still pending.
3. The submission of the learned Counsel for the petitioner is that the calendra presented in the Court under the signatures of the Assistant Sub Inspector is totally incompetent for the reason that in terms of the provisions of Section 195(1)(iii) of the Code of Criminal Procedure(for short `Cr.P.C.), the same could be presented only by the Public servant to whom the complaint was made or any other Public servant to whom he is administratively subordinate. She has relied upon the judgments Daulat Ram v. State of Punjab ; Vinod Kumar v. State of Haryana 1999(3) RCR (Criminal) 323; Sardari Lal v. State of Punjab 1992(2) RCR(Criminal) 13 and D.S.Rawat v. State of Punjab 2007(2)RCR(Criminal) 199.
4. On the other hand, learned Counsel for the State submitted that the calendra though was presented under the signatures of Assistant Sub Inspector but as it is evident thereon, it was on the direction by the Senior Superintendent of Police whereby he ordered for taking action against the petitioner under Section 182 IPC.
5. Hon’ble Supreme Court in Daulat Ram’s case (supra) has 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 Section 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 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 Section 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 Section 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 Section 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.
4. Now the offence under Section 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 Section 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 Section 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. Similar is the position in the other referred judgments.
6. Once the position of law on the issue whether calendra under Section 182 IPC can be presented under the signatures of any authority who though subordinate to the person to whom the complaint was made but on the direction of the authority concerned is already settled and it has been opined that in case the prosecution is to be launched under Section 182 IPC, the complaint in writing should be made by the public servant concerned and not his subordinate and mere direction by the competent authority to present calandra will not comply with the provisions of law. In the present case, the complaint has been filed by the petitioner to the Senior Superintendent of Police but calendra has been presented by the Assistant Sub Inspector, which cannot be held to be valid in terms of provisions of Section 195(1)(iii) of the Code of Criminal Procedure.
7. Accordingly, Annexure P5, calendra presented to the Magistrate and all subsequent proceedings thereto are quashed.
The petition is disposed of.
