{"id":151060,"date":"2008-07-03T00:00:00","date_gmt":"2008-07-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/babita-vs-state-of-punjab-and-another-on-3-july-2008"},"modified":"2017-06-03T03:16:31","modified_gmt":"2017-06-02T21:46:31","slug":"babita-vs-state-of-punjab-and-another-on-3-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/babita-vs-state-of-punjab-and-another-on-3-july-2008","title":{"rendered":"Babita vs State Of Punjab And Another on 3 July, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Babita vs State Of Punjab And Another on 3 July, 2008<\/div>\n
Criminal Misc. No. M-49179 of 2003 (O&M)                  -1-\n\n      IN THE HIGH COURT OF PUNJAB AND HARYANA\n                   AT CHANDIGARH\n                   ****\n<\/pre>\n
                      Criminal Misc. No.49179-M of 2003 (O&M)
\n                              Date of Decision:03.07.2008<\/p>\n
Babita
\n                                                          …..Petitioner
\n            Vs.\n<\/p>\n
State of Punjab and another
\n                                                          …..Respondents<\/p>\n
CORAM:- HON’BLE MR. JUSTICE RAJESH BINDAL
\nPresent:-   Ms. Supriya Jaswal, Advocate for the petitioner.\n<\/p>\n
            Mr. Anter Singh Brar, DAG, Punjab.\n<\/p>\n
                         ****
\nRAJESH BINDAL J.\n<\/p>\n
            The prayer in the present petition filed under Section 482
\nCr.P.C is for quashing kalendra filed under Section 182 IPC vide rapat
\nNo.55 dated 3.7.2003 by SHO, Police Station, Model Town, Ludhiana and
\nall proceedings subsequent thereto with a further direction for re-
\ninvestigation in FIR No.432 dated 24.10.2002 registered under Sections
\n323\/341\/506 IPC at Police Station Model Town, Ludhiana by some senior
\nofficer.\n<\/p>\n
            Briefly, the facts as stated in the petition are that the petitioner
\nwith her mother Baljit Kaur started orchestra party in the year 1990 with one
\nSagir Hussain in the name of `Babita Sagir and Party’.           They worked
\ntogether for about three years. However, due to the fact that Sagir Hussain
\nhad been keeping bad eyes on the petitioner, the parties separated their
\nbusiness. Still Sagir Hussain continued harassing the petitioner and her
\nmother. He had been putting pressure on the petitioner to join his group.
\nOn refusal, false cases were filed against the petitioner. On 17.10.2002,
\nwhen the petitioner and her mother were returning after attending the Court
\nat Malerkotla, where a false complaint has been filed by Sagir Hussain
\nagainst them, they were followed by Sagir Hussain. When the petitioner
\nreached near Garha Market, Ludhiana, Sagir Hussain stopped his vehicle
\nahead of the vehicle of the petitioner. He gave beating to the driver of the
\npetitioner’s vehicle and hurled filthy abuses to the petitioner and her sisters
\nKrishma, Reshama and threatened to kidnap them. After this occurrence, a
\n Criminal Misc. No. M-49179 of 2003 (O&M)                  -2-\n<\/p>\n
written complaint was filed to the SSP, Ludhiana on 23.10.2002. It is
\nfurther stated that as Sagir Hussain is a very influential person of
\nMalkerkotla, he interfered in the investigation of the FIR and got a
\ncancellation report prepared. The cancellation report was presented before
\nthe Lok Adalat on 26.4.2003. However, on consideration of the objections
\nraised by the petitioner showing dissatisfaction to the report, the learned
\nPresiding Officer, Lok Adalat remitted the matter back to the Station House
\nOfficer, Model Town, Ludhiana. Before even the of cancellation report,
\nwith his influence Sagir Hussain got the impugned kalendra prepared and
\nfiled against the petitioner under Section 182 IPC. It is this kalendra, which
\nis impugned in the present petition.\n<\/p>\n
             Learned counsel for the petitioner submitted that the filing of
\nkalendra against the petitioner when even the investigation was still pending
\nbefore the police after having been returned by the Lok Adalat shows bias
\napproach of the prosecution to harass the petitioner. Further it is submitted
\nthat even if it is found that the kalendra was maintainable at this stage still
\nthe same was not competent for the reason that the complaint was
\nadmittedly made by the petitioner to the SSP, Ludhiana whereas the
\nkalendra was filed with the Court under the signatures of the SHO, Police
\nStation, Model Town, Ludhiana. Reliance has been placed upon judgments
\nof this Court in Jarnail Singh v. State of Punjab and another, 1983(1)
\nChandigarh Law Reporter 719; Vinod Kumar v. State of Haryana,<\/a> 1999
\n(3) RCR (Criminal) 323 and Sardari Lal v. State of Punjab,<\/a> 1992(2) RCR
\n(Criminal) 13.\n<\/p>\n
             The stand of the State in the reply filed is that on inquiry,
\ncancellation report was prepared on 5.12.2002 and was presented in the
\nCourt of Illaqa Magistrate and the same had not been accepted so far. He,
\non instructions from Hira Singh, ASI further submitted that on account of
\nobjections raised by the petitioner to the cancellation report, the same was
\nnot accepted by the learned Magistrate and the matter has been remitted
\nback for further investigation.\n<\/p>\n
             Once the parties are not in dispute with regard to the fact that
\nthe complaint made by the petitioner on the basis of which FIR No.432
\ndated 24.10.2002 was registered against Sagir Hussain is still pending
\ninvestigation with the police and it is yet to be established that the same is
\n Criminal Misc. No. M-49179 of 2003 (O&M)                    -3-\n<\/p>\n
false.\n<\/p>\n
             In Ramesh Chand v. State of Haryana,<\/a> 2006(4) RCR
\n(Criminal) 718, this Court quashed the proceedings initiated by the police
\nunder Section 182 IPC in the facts where, though the police on investigation
\nfound the allegations made by the complainant to be false, but on a
\ncomplaint filed by the complainant on the same allegations, the accused had
\nbeen summoned. Accordingly, it was opined that at that stage it could not
\nbe said that the complaint made by the petitioner was totally false. To
\nsimilar effect is the judgment of this Court in Tarlochan Singh v. State of
\nPunjab,<\/a> 2007(3) RCR (Criminal) 791.\n<\/p>\n
             Keeping in view the facts of the present case, where the final
\nopinion by the Court is yet to be expressed as regard the falsity of the
\ncomplaint made by the petitioner, permitting the respondents to proceed
\nwith the proceedings under Section 182 IPC would amount to pre-judging
\nthe complaint filed by the petitioner. The same is pre-mature and would
\namount to abuse of process of law. It would be proper, to secure the ends of
\njustice, to quash the proceedings against the petitioner.\n<\/p>\n
             As far as second contention of counsel for the petitioner
\nregarding the kalendra being incompetent on the ground that the same has
\nbeen filed under the signatures of SHO, Police Station, Model Town,
\nLudhiana whereas the complaint was made to SSP, Ludhiana is concerned,
\nthe issue has been considered in detail by this Court in Criminal Misc.
\nNo.60096-M of 2004 (Surjit Singh v. State of Punjab) decided on
\n6.2.2008, wherein relying upon judgment of Hon’ble the Supreme Court in
\nDaulat Ram v. State of Punjab, AIR<\/a> 1962 Supreme Court 1206, it has
\nbeen opined that if the prosecution is to be launched under Section 182 IPC,
\nthe complaint in writing should be made by the public servant concerned
\nand not by any other person. Paras 3 and 4 of the judgment can be referred
\nfor reference which read as under:-\n<\/p>\n
              “3. The only question in this case is whether a complaint in
\n                   writing as required by S.195 had been presented by the
\n                   public servant concerned.     The public servant who was
\n                   moved by the appellant was undoubtedly the Tehsildar.<\/p><\/blockquote>\n
                   Whether     the appellant wanted the Tehsidar to take
\n                   action or not, the fact remains that he moved the
\n Criminal Misc. No. M-49179 of 2003 (O&M)                      -4-\n<\/p>\n
                  Tehsildar on what is stated to be a false averment of
\n                  facts.    He had charged Hans Raj and Kans Raj with
\n                  offences under the Penal Code and he had moved his
\n                  superior officer for action even though he might have
\n                  stated in the letter that it was only for his information.
\n                  We are prepared to assume that he expected that some
\n                  action would be taken. In fact his second letter that he
\n                  had compromised the matter and the proceeding might be
\n                  dropped clearly shows that it anticipated some action on
\n                  the part of his superior officer. The question is therefore
\n                  whether under         the provisions of S.195, it was not
\n                  incumbent on the Tehsildar to present a complaint in
\n                  writing against the appellant and not leave the court to be
\n                  moved by the police by putting in a charge-sheet. The
\n                  words of S.195 of the Criminal Procedure Code are
\n                  explicit. The section read as follows:-\n<\/p><\/blockquote>\n
                   “(1) No Court shall take cognizance-(a) of any offence
\n                           punishable under Ss.172 to 188 of the Indian Penal
\n                           Code. except on the complaint in writing of the
\n                           public servant concerned, or of some other public
\n                           servant to whom he is subordinate; ………………….”
\n                  The words of the section, namely, that the complaint has
\n                  to be in writing by the public servant concerned and that
\n                  no court shall take cognizance except on such a
\n                  complaint clearly show that in every instance the court
\n                  must be moved by the appropriate public servant. We
\n                  have to decide therefore whether the Tehsildar can be
\n                  said to be the public servant concerned and if he had not
\n                  filed the complaint in writing, whether the police officers
\n                  in filing the charge sheet had satisfied the requirements
\n                  of S.195. The words “no court shall take cognizance”
\n                  have been interpreted on more than one occasion and
\n                  they show that there is an absolute bar against the court
\n                  taking seisin of the case except in the manner provided
\n                  by the section.\n<\/p><\/blockquote>\n
 Criminal Misc. No. M-49179 of 2003 (O&M)                -5-\n<\/p><\/blockquote>\n
              4.   Now the offence under S.182 of the Penal Code, if any,
\n                   was undoubtedly complete when the appellant had
\n                   moved the Tehsildar for action. Section 182 does not
\n                   require that action must always by taken if the person
\n                   who moves the public servant knows of believes that
\n                   action would be taken.     In making his report to the
\n                   Tehsildar therefore, if the appellant believed that some
\n                   action would be taken (and he had no reason to doubt
\n                   that it would not) the offence under that section was
\n                   complete. It was therefore incumbent, if the prosecution
\n                   was to be launched, that the complaint in writing should
\n                   be made by the Tehsildar as the public servant concerned
\n                   in this case. On the other hand what we find is that a
\n                   complaint by the Tehsildar as the public servant
\n                   concerned in this case. On the other hand what we find
\n                   is that a complaint by the Tehsildar was not filed at all,
\n                   but a charge sheet was put in by the Station House
\n                   Officer. The learned counsel for the State Government
\n                   tries to support the action by submitting that S.195 had
\n                   been complied with inasmuch as when the allegations
\n                   had been disproved, the letter of the Superintendent of
\n                   Police was forwarded to the Tehsildar and he asked for
\n                   “a calendar.” (Sic This paper was filed along with the
\n                   charge sheet and it is stated that this satisfies the
\n                   requirements of S.195. In our opinion, this is not a due
\n                   compliance with the provisions of that section. What
\n                   the section contemplates is that the complaint must be in
\n                   writing by the public servant concerned and there is no
\n                   such compliance in the present case. The cognizance of
\n                   the case was therefore wrongly assumed by the court
\n                   without the complaint in writing of the pubic servant
\n                   namely the Tehsildar in this case. The trial was thus
\n                   without jurisdiction ab initio and the conviction cannot
\n                   be maintained.”\n<\/p><\/blockquote>\n
 Criminal Misc. No. M-49179 of 2003 (O&M)                 -6-<\/p>\n
            In State of U.P. v. Mata Bhikh & Others,<\/a> (1994) 4 SCC 95
\nfollowing the judgment of        Daulat Ram’s case (supra), Hon’ble the
\nSupreme Court opined as under:-\n<\/p>\n
            “A cursory reading of Section 195(1)(a) makes out that in case
\n            a public servant concerned who has promulgated an order
\n            which has not been obeyed or which has been disobeyed, does
\n            not prefer to give a complaint or refuses to give a complaint
\n            then it is open to the superior public servant to whom the
\n            officer who initially passed the order is administratively
\n            subordinate to prefer a complaint in respect of the disobedience
\n            of the order promulgated by his subordinate.           The word
\n            `subordinate’ means administratively subordinate, i.e., some
\n            other public servant who is his official superior and under
\n            whose administrative control he works.”<\/p><\/blockquote>\n
            Similar view has been expressed by Hon’ble the Supreme Court
\nin a recent judgment in P.D.Lakhani and another v. State of Punjab and
\nothers, 2008 AIR SCW 3357 relying upon its earlier judgment in Daulat
\nRam’s case (supra) and Mata Bhikh’s case (supra). Relevant para thereof
\nis extracted below:-\n<\/p>\n
                   “No complaint, therefore, could be lodged before the
\n            learned Magistrate by the Station House Officer.            Even
\n            assuming that the same was done under the directions of Senior
\n            Superintendent of Police, Jallandhar, Section 195, in no
\n            uncertain terms, directs filing of an appropriate complaint
\n            petition only by the public servant concerned or his superior
\n            officer. It, therefore, cannot be done by an inferior officer. It
\n            does not provide for delegation of the function of the public
\n            servant concerned.<\/p><\/blockquote>\n
                   We may notice that in terms of sub-section (3) of Section
\n            340 of the Code, a complaint may be signed by such an officer
\n            as the High Court may appoint if the complaint is made by the
\n            High Court. But in all other cases, the same is to be done by
\n            the presiding officer of the court or by such officer of the court
\n            as it may authorize in writing in this behalf. Legislature, thus,
\n            wherever thought necessary to empower a court or public
\n Criminal Misc. No. M-49179 of 2003 (O&M)               -7-\n<\/p>\n
            servant to delegate his power, made provisions therefor. As the
\n            statute does not contemplate delegation of his power by the
\n            Senior Superintendent of Police, we cannot assume that there
\n            exists such a provision. A power to delegate, when a complete
\n            bar is created, must be express; it being not an incidental
\n            power.”<\/p><\/blockquote>\n
            Even on this ground, the case set up by the petitioner deserves
\nacceptance as admittedly the complaint was filed before the SSP, Ludhiana
\nwhereas kalendra was presented under the signatures of SHO.\n<\/p>\n
            For the reasons mentioned above, the impugned kalendra
\nAnnexure P.1 presented to the Magistrate and all proceedings subsequent
\nthereto are quashed.\n<\/p>\n
            The petition is disposed of.\n<\/p>\n
July 03, 2008                                    ( RAJESH BINDAL )\nrenu                                                    JUDGE\n\n                         ( Refer to Reporter )\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Babita vs State Of Punjab And Another on 3 July, 2008 Criminal Misc. No. M-49179 of 2003 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-151060","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nBabita vs State Of Punjab And Another on 3 July, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/babita-vs-state-of-punjab-and-another-on-3-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Babita vs State Of Punjab And Another on 3 July, 2008 - 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