Himachal Pradesh High Court
Tanveer Son Of Sh. Kameshwar vs State Of Punjab on 13 May, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 13th DAY OF MAY, 2022
BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC No. 119
OF 2022
.
BETWEEN:
1. TANVEER SON OF SH. KAMESHWAR
THAKUR, AGED 31 YEARS, RESIDENT OF
VILLAGE KOTHI KUND POST OFFICE
BATHANLOG, TEHSIL ARKI, DISTRICT
SOLAN, HIMACHAL PRADESH.
2. MRS. NEHA WIFE OF SHRI TANVEER,
AGED 31 YEARS RESIDENT OF VILLAGE
KOTHI KUND POST OFFICE
BATHANLOG, TEHSIL ARKI, DISTRICT
SOLAN, HIMACHAL PRADESH. PETITIONERS.
(BY SH. KULWANT SINGH GILL,
ADVOCATE)
AND
1 STATE OF HIMACHAL PRADESH
THROUGH SECRETARY HOME.
2. RADHA SHARMA (PARENTAGE NOT
KNOWN) BLOCK MEDICAL OFFICER
ARKI, DISTRICT SOLAN HIMACHAL
PRADESH.
(SH. HEMANT VAID, ADDITIONAL
ADVOCATE GENERAL, FOR THE
RESPONDENT-STATE)
H.C CHUNI LAL NO.33, POLICE STATION
ARKI, DISTRICT SOLAN, PRESENT IN
PERSON
Whether approved for Reporting? yes
This petition coming on for admission this day, the
Court passed the following:
::: Downloaded on - 24/12/2022 09:20:13 :::CIS
2
ORDER
Petitioners, invoking provisions of Section 482 Cr.P.C, has approached this Court for quashing of FIR No.16 dated .
20.3.2020, registered under under Sections 188, 289 and 269 of Indian Penal Code (in short 'IPC') in Police Station Arki, District Solan, HP as well as Police Challan No.80 of 2020, pending adjudication in the trial Court.
2. Petitioner No.1 Tanveer and his wife petitioner No.2 Neha after their marriage in the year 2020, went Abroad and came back in March, 2020. By that time Covil19 had started spreading and resultantly various guidelines, issued by the Government of H.P., time to time, with respect to Covid19 Pandemic including providing home isolation to the persons returned from Abroad, were in force.
3. Respondent No.2, on whose instance FIR has been registered, was serving as Block Medical Officer, Arki, District Solan. at that time.
4. It is case of the petitioners that they being law abiding citizens had followed all instructions issued with regard to the Covid19 pandemic but someone, on account of ill will, from the locality of the petitioners, transmitted false information to respondent No.2 and other concerned Officers that petitioners had violated mandatory norms which resulted into registration of ::: Downloaded on - 24/12/2022 09:20:13 :::CIS 3 above referred FIR against the petitioners.
5. Learned counsel for the petitioners has submitted that in view of provisions of Section 195 of Cr.P.C, cognizance of .
offence committed under Section 188 of I.P.C can only be taken on the basis of complaint, made in writing, of public servant concerned or some other public servant administratively superior to him, whereas in present case neither public servant concerned who had promulgated order, nor any other Officer superior to him has made any complaint either to police or to the Court and further that at relevant point of time, petitioners were not suffering from Corona Virus and, thus, Sections 269 and 326 of I.P.C are also not attracted in present case. Therefore, learned counsel for the petitioners has prayed for quashing of FIR as well as proceedings initiated in furtherance to the FIR.
6. Learned counsel for petitioners, to substantiate his plea, has placed reliance upon pronouncements of Supreme Court in Daulat Ram vs. State of Punjab, reported in AIR 1962 SC 1206;
and C.Muniappan and others vs. State of Tamil Nadu, reported in (2010)9 SCC 567.
7. Section 195 Cr.P.C. reads as under: "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
(1) No Court shall take cognizance ::: Downloaded on - 24/12/2022 09:20:13 :::CIS 4
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such .
offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub clause (i) or sub clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
(2) 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.
(3) In clause (b) of sub section (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.
(4) For the purposes of clause (b) of sub section (1), a Court shall be deemed to be subordinate to the Court ::: Downloaded on - 24/12/2022 09:20:13 :::CIS 5 to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate: Provided .
that
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."
8. The Supreme Court in Dault Ram's case has held that Section 195 of Cr.P.C. contemplates that complaint must be in writing, made by public servant concerned, and that where there is noncompliance of provisions of Section 195 Cr.P.C., the Court cannot take cognizance of the case covered under the provisions of Section 195 Cr.P.C. and any trial conducted by the trial Court in absence such compliance is without jurisdiction ab initio and conviction cannot be maintained in such situation.
9. In C. Muniappan's case the Supreme Court has observed: "28. Section 195(a)(i) Cr.PC bars the court from taking cognizance of any offence punishable under Section 188 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. The object of this provision is to provide for a particular procedure ::: Downloaded on - 24/12/2022 09:20:13 :::CIS 6 in a case of contempt of the lawful authority of the public servant. The court lacks competence to take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds .
by persons actuated by malice, illwill or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions. This provision has been carved out as an exception to the general rule contained under Section 190 Cr.P.C that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person. Other provisions in the Cr.PC like sections 196 and 198 do not lay down any rule of procedure, rather, they only create a bar that unless some requirements are complied with, the court shall not take cognizance of an offence described in those Sections. (vide Govind Mehta v. The State of Bihar, AIR 1971 SC 1708; Patel Laljibhai Somabhai v. The State of Gujarat, AIR 1971 SC 1935; Surjit Singh & Ors. v. Balbir Singh, (1996) 3 SCC 533; State of Punjab v. Raj Singh & Anr., (1998) 2 SCC 391; K. Vengadachalam v. K.C. Palanisamy & Ors., (2005) 7 SCC 352; and Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr., (2005)7 SCC 370).
29. The test of whether there is evasion or noncompliance of Section 195 Cr.PC or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. In BasirulHaq & Ors. v. The State of West Bengal, AIR 1953 SC 293; and Durgacharan Naik & Ors v. State of Orissa, AIR 1966 SC 1775, this Court held that the provisions of this Section cannot be evaded by describing the offence as one being punishable under some other sections of IPC, though in truth and substance, the offence falls in a category mentioned in Section 195 Cr.PC. Thus, cognizance of such an offence cannot be taken by misdescribing it or by putting a wrong label on it.
::: Downloaded on - 24/12/2022 09:20:13 :::CIS 730. In M.S. Ahlawat v. State of Haryana & Anr., AIR 2000 SC 168, this Court considered the matter at length and held as under :
"5....Provisions of Section 195 CrPC are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is .
a complaint in writing as required under that section." (Emphasis added)
31. In Sachida Nand Singh & Anr. v. State of Bihar & Anr., (1998) 2 SCC 493, this Court while dealing with this issue observed as under :
"7. ..Section 190 of the Code empowers "any magistrate of the first class" to take cognizance of "any offence" upon receiving a complaint, or police report or information or upon his own knowledge. Section 195 restricts such general powers of the magistrate, and the general right of a person to move the court with a complaint to r that extent curtailed. It is a wellrecognised canon of interpretation that provision curbing the general jurisdiction of the court must normally receive strict interpretation unless the statute or the context requires otherwise....."
(Emphasis supplied)
32. In Daulat Ram v. State of Punjab, AIR 1962 SC 1206, this Court considered the nature of the provisions of Section 195 Cr.PC. In the said case, cognizance had been taken on the police report by the Magistrate and the appellant therein had been tried and convicted, though the concerned public servant, the Tahsildar had not filed any complaint.
This Court held as under :
"4.....The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant, namely,the Tahsildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained.::: Downloaded on - 24/12/2022 09:20:13 :::CIS 8
5. ...The appeal is, therefore, allowed and the conviction of the appellant and the sentence passed on him are set aside."
(Emphasis added)
33. Thus, in view of the above, the law can be .
summarized to the effect that there must be a complaint by the pubic servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Cr.PC are mandatory. Noncompliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction."
10. Pending adjudication this petition, learned Additional Advocate General was directed to have instructions as to whether at relevant point of time petitioners were suffering from Corona Virus or not. In response thereto, it has been informed by the concerned Police Station that at relevant point of time, petitioners were not suffering from Corona Virus. However, it has been submitted that on 13.3.2020, petitioners returned from Indonesia and were directed by Block Medical Office, Arki to remain Home Quarantine, but on 19.3.2020, without informing any authorized Officer, they went to village Dhianpur which was violation of order passed by the District Magistrate and, therefore, coupled with possibility of spreading Covid Pandemic, petitioners were found to have committed offences under Section 188 and 269 of I.P.C and, thus, on the basis of information/complaint of Block Medical ::: Downloaded on - 24/12/2022 09:20:13 :::CIS 9 Officer, case was registered, investigation was carried out and challan was presented in the Court on 31.10.2020, which is now listed for consideration of charge on 29.6.2022.
.
11. Section 269 of I.P.C provides that whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment or fine or with both.
12. In present case, as has been reported by the police, petitioners were not suffering from Covid 19, therefore, there was no question of knowing or having reason to believe to be, likely to spread the infection of any disease dangerous to life by the petitioners. Hence, provisions of Section 269 of I.P.C are not attracted in present case.
12. Section 195 Cr.P.C restricts the manner in which cognizance of an offence is to be taken by the Court. With reference to present case, it provides that a complaint for commission of offence under Section 188 of I.P.C must be made by the Officer whose order has been violated or by the Officer superior to him and not in any other manner as functions of public servant under Section 195 Cr.P.C cannot be delegated.
13. Though case of commission of offence under 269 I.P.C is not made out however, even otherwise the offence alleged to be ::: Downloaded on - 24/12/2022 09:20:13 :::CIS 10 committed under Section 269 I.P.C is related to commission of offence under Section 188 I.P.C and for one and the same offence, alleged to have been committed by the petitioners, the case under .
these Sections has been registered. Therefore, the offence alleged to have been committed under these two Sections is inseparable.
14. Accordingly, FIR No.16 of 2020, dated 20.3.2020 registered in Police Station Arki, District Solan, H.P. as well as consequential proceedings arising thereto including Police Challan jurisdiction.
r to No.80 of 2020 are quashed being void ab initio for want of Petition is allowed in aforesaid terms.
The parties are permitted to produce copy of order downloaded from the High Court website and concerned authority shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.
(Vivek Singh Thakur), th 13 May, 2022 Judge.
(veena) ::: Downloaded on - 24/12/2022 09:20:13 :::CIS