Punjab-Haryana High Court
Mohd. Aftab vs State Of Ut Civil Secretariat on 8 December, 2023
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2023:PHHC:157240
CRM-M-12358-2023
213 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-M-12358-2023
Reserved on: 01.12.2023
Pronounced on: 08.12.2023
Mohd. A ab ...Pe oner
Versus
State of UT Civil Secretariat ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Pulkit Sachdeva, Advocate
for the pe oner.
Mr. Manish Bansal, P.P., with
Mr. Rajiv Vij, APP for UT, Chandigarh.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta on Sec ons 003 05.01.2019 Sector-31 188 IPC Chandigarh
1. Seeking quashing of the above cap oned FIR and all consequent proceedings, including the police challan dated 15.01.2019 filed under Sec on 173 Cr.P.C., the accused had come up before this Court by filing the present pe on under Sec on 482 Cr.P.C. on 23.02.2023.
2. The facts of the case are that on 05.01.2019, the police received informa on about a scuffle near Fainda Slum, near Kali Mata Mandir. Based on this informa on, the police officials reached village Fainda Jhuggi, where they met one Rinki, who informed them that she fought with her neighbor Israt, and now the maCer has been compromised. On inquiry about the owner of the house, they named the pe oner as its owner, and the vic m was a tenant on a monthly rent of Rs.1200/-. As per the circular, the property owners were directed to provide details of their tenants to the Police Sta on. Upon inquiry, the pe oner could not provide any receipt or copy of the applica on, in which he had informed about Rinki being inducted as a tenant. Thus, according to the police, it violated order No.DM/MA-2018/24212 dated 12.11.2018 issued under Sec on 144 Cr.P.C. by the concerned District Magistrate, and consequently, FIR under Sec on 188 IPC was registered against the pe oner. A er comple on of the inves ga on, challan/police report Annexure P-2 was filed by the Inspector/SHO seeking pe oner's 1 1 of 6 ::: Downloaded on - 09-12-2023 04:45:10 ::: Neutral Citation No:=2023:PHHC:157240 CRM-M-12358-2023 prosecu on for the commission of an offence under Sec on 188 IPC.
3. I have heard counsel for the par es and gone through the pleadings. It is clear that based on the police challan/ report filed under sec on 173 CrPC, the JMIC, Chandigarh had taken cognizance of the offence under sec on 188 IPC and issued the charges dated 21-02-2019, Annexure P-4.
4. The fundamental reason to disrupt the criminal trial is the express bar of Sec on 195 CrPC, which applies to the facts of the present case on all fours. Sec on 1951 CrPC clearly states that the Court cannot take Cognizance on the Police Report/Challan. The complaint is defined under sec on 2(d)2 of CrPC, which excludes the Police Report/Challan under sec on 173 CrPC, and the cognizance can be taken only on a complaint filed by the complainant in Court under sec on 200 of CrPC. Neither the police report/Challan under sec on 173(2)3 CrPC could have been filed in the Court, nor could the Court have taken cognizance of the offence based on such a police report.
5. In C. Muniappan and ors. v. State of Tamil Nadu, (2010) 9 SCC 567, Supreme Court of India has declared Sec on 195 CrPC as mandatory, and it holds, [28]. Sec on 195(a)(i) Cr.PC bars the court from taking cognizance of any offence punishable under Sec on 188 IPC or 1
195. Prosecu on for contempt of lawful authority of public servants, for offences against public jus ce and for offences rela ng to documents given in evidence.--(1) No Court shall take cognizance--
(a) (i) of any offence punishable under sec ons 172 to 188 (both inclusive) of the Indian Penal Code, (45 of 1860), or xxx xxx except on the complaint in wri ng of that Court or by such officer of the Court as that Court may authorise in wri ng in this behalf, or of some other Court to which that Court is subordinate.
xxx xxx 2
(d) "complaint" means any allega on made orally or in wri ng to a Magistrate, with a view to his taking ac on under this Code, that some person, whether known or unknown, has commiCed an offence, but does not include a police report.
Explana on.--A report made by a police officer in a case which discloses, a er inves ga on, the commis- sion of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;
3173. Report of police officer on comple#on of inves#ga#on.--(1) Every inves ga on under this Chapter shall be completed without unnecessary delay.
Xxx xxx (2) (i) As soon as it is completed, the officer in charge of the police sta on shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, sta ng--
xxx xxx 2 2 of 6 ::: Downloaded on - 09-12-2023 04:45:11 ::: Neutral Citation No:=2023:PHHC:157240 CRM-M-12358-2023 abetment or aCempt to commit the same, unless, there is a wriCen complaint by the public servant concerned for contempt of his lawful order. The object of this provision is to provide for a par cular procedure 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 legisla ve intent behind such a provision has been that an individual should not face criminal prosecu on ins tuted upon insufficient grounds by persons actuated by malice, ill-will or frivolity of disposi on and to save the me of the criminal courts being wasted by endless prosecu ons. This provision has been carved out as an excep on to the general rule contained under Sec on 190 Cr.PC that any person can set the law in mo on by making a complaint, as it prohibits the court from taking cognizance of certain offences un l and unless a complaint has been made by some par cular authority or person. Other provisions in the Cr.PC like Sec ons 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 Sec ons. (vide Govind Mehta v. The State of Bihar MANU/SC/0106/1971 : AIR 1971 SC 1708; Patel Laljibhai Somabhai v. The State of Gujarat AIR 1971 SC 1935; Surjit Singh and Ors. v. Balbir Singh (1996) 3 SCC 533; State of Punjab v. Raj Singh and Anr. (1998) 2 SCC 391; K. Vengadachalam v. K.C. Palanisamy and Ors. (2005) 7 SCC 352 and Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr. (AIR 2005 SC 2119).
[29]. The test of whether there is evasion or non-compliance of Sec on 195 Cr.PC or not, is whether the facts disclose primarily and essen ally an offence for which a complaint of the court or of a public servant is required. In Basir-ul-Haq and Ors. v. The State of West Bengal (AIR 1953 SC 293) and Durgacharan Naik and Ors. v. State of Orissa (AIR 1966 SC 1775), this Court held that the provisions of this Sec on cannot be evaded by describing the offence as one being punishable under some other sec ons of IPC, though in truth and substance, the offence falls in a category men oned in Sec on 195 Cr.PC. Thus, cognizance of such an offence cannot be taken by mis-describing it or by puUng a wrong label on it.
[30]. In M.S. Ahlawat v. State of Haryana and Anr. (AIR 2000 SC
168), this Court considered the maCer at length and held as under:
...Provisions of Sec on 195 CrPC are mandatory and no court has jurisdic on to take cognizance of any of the offences men oned therein unless there is a complaint in wri ng as required under that sec on.
(Emphasis added) [31]. In Sachida Nand Singh and Anr. v. State of Bihar and Anr. (1998) 2 SCC 493, this Court while dealing with this issue observed as under:
7. ...Sec on 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 informa on or upon his own knowledge.
Sec on 195 restricts such general powers of the 3 3 of 6 ::: Downloaded on - 09-12-2023 04:45:11 ::: Neutral Citation No:=2023:PHHC:157240 CRM-M-12358-2023 magistrate, and the general right of a person to move the court with a complaint to that extent curtailed. It is a well- recognised canon of interpreta on that provision curbing the general jurisdic on of the court must normally receive strict interpreta on 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 Sec on 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:
The cognizance of the case was therefore wrongly assumed by the court without the complaint in wri ng of the public servant, namely, the Tahsildar in this case. The trial was thus without jurisdic on ab ini o and the convic on cannot be maintained. The appeal is, therefore, allowed and the convic on 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 public servant whose lawful order has not been complied with. The complaint must be in wri ng. The provisions of Sec on 195 Cr.PC are mandatory. Non-compliance of it would vi ate the prosecu on and all other consequen al orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and convic on will be void ab ini o being without jurisdic on.
6. In State of U.P. v. Mata Bhikh and Ors., (1994) 4SCC 95, Supreme Court, holds, [6]. The object of this Sec on is to protect persons from being vexa ously prosecuted upon inadequate materials or insufficient grounds by person actuated by malice or illwill or frivolity of disposi on at the instance of private individuals for the offences specified therein. The provisions of this Sec on, no doubt, are mandatory and the Court has no jurisdic on to take cognizance of any of the offences men oned therein unless there is a complaint in wri ng of 'the public servant concerned' as required by the Sec on without which the trial under Sec on 188 of the Indian Penal Code becomes void ab ini o. See Daulat Ram v. State of Punjab 1962 (Supp.) 2 SCR 812.
To say in other words a wriCen complaint by a public servant concerned is sine qua non to ini ate a criminal proceeding under Sec on 188 of the IPC against those who, with the knowledge that an order has been promulgated by a public servant direc ng either 'to abstain from a certain act, or to take certain order, with certain property in his possession or under his management' disobey that order. Nonetheless, when the Court in its discre on is disinclined to prosecute the wrongdoers, no private complainant can be allowed to ini ate any criminal proceeding in his individual capacity as it would be clear from the reading of the 4 4 of 6 ::: Downloaded on - 09-12-2023 04:45:11 ::: Neutral Citation No:=2023:PHHC:157240 CRM-M-12358-2023 Sec on itself which is to the effect that no Court can take cognizance of any offence punishable under Sec on 172 to 188 of the IPC except on the wriCen complaint of 'the public servant concerned' or of some other public servant to whom he (the public servant who promulgated that order) is administra vely subordinate.
[15]. On a scru ny of Sec on 195(1)(a), we are of the view that a successor in office of a public servant concerned will also fall within the ambit of the expression 'public servant concerned'. Any other view contrary to it will only create difficul es in certain situa ons. For example, in a case where a public servant concerned promulgates a preliminary order under Sec on 133, 145 or 146 of the CrPC and is transferred or re res or ceases to be in office on any account before a final order is passed, would it mean that the successor who is under the law to con nue the same proceeding has no right to file a complaint if the preliminary order is disobeyed. The answer would be that the successor in office can file a complaint. In every such situa on, one cannot expect the superior officer to whom the public servant is administra vely subordinate to file a complaint against the wrongdoers disobeying either the preliminary order or the final order promulgated by the public servant concerned.
7. In Saloni Arora v. State of NCT of Delhi, (2017)3SC C 286, Supreme Court holds, [11]. It is not in dispute that in this case, the prosecu on while ini a ng the ac on against the Appellant did not take recourse to the procedure prescribed Under Sec on 195 of the Code. It is for this reason, in our considered opinion, the ac on taken by the prosecu on against the Appellant insofar as it relates to the offence Under Sec on 182 Indian Penal Code is concerned, is rendered void ab ini o being against the law laid down in the case of Daulat Ram (AIR 1962 SC 1206) quoted above.
8. Given the express provisions provided under Sec on 195 of the CrPC, 1973, criminal prosecu on under sec ons 172 to 188 (both inclusive) cannot be launched by filing a police report under sec on 173 CrPC but can only be ini ated by the concerned public servant by filing a complaint under sec on 1904 (a) CrPC and not under 190(b) CrPC; and the concerned Court is empowered to take cognizance only when it is filed by the persons as men oned in sec on 195 CrPC and not otherwise.
4190. Cognizance of offences by Magistrates.--(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-sec on (2), may take cognizance of any offence--
(a) upon receiving a complaint of facts which cons tute such offence;
(b) upon a police report of such facts;
(c) upon informa on received from any person other than a police officer, or upon his own knowledge, that such offence has been commiCed.
xxx xxx 5 5 of 6 ::: Downloaded on - 09-12-2023 04:45:11 ::: Neutral Citation No:=2023:PHHC:157240 CRM-M-12358-2023
9. In the present case, the prosecu on was launched by filing a police report under sec on 173 (2) CrPC for the commission of an offence punishable under sec on 188 IPC, whereas sec on 195(1)(a)(i) bars the Court from taking cognizance of any offence punishable under Sec on 188 of the IPC unless there is wriCen complaint by the public servant concerned for contempt of their lawful order. The police report, being not a complaint, could not have been made the basis for taking cognizance of the offence under sec on 188 of the IPC, and the concerned Court had no jurisdic on to summon the accused.
10. Given the above, the present pe on is allowed. FIR No. 3, dated 5-1-2019, registered in Police Sta on Sector-31 Chandigarh and the police report (Challan) under Sec on 173 CrPC filed in this FIR, and charge sheet dated 21-02-2019 are quashed and set aside. Consequently, all further proceedings are also quashed and set aside. Pending applica ons, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
08.12.2023
Jyo Sharma
Whether speaking/reasoned: Yes
Whether reportable: YES.
Neutral Citation No:=2023:PHHC:157240
6
6 of 6
::: Downloaded on - 09-12-2023 04:45:11 :::