Jharkhand High Court
Kamal Duggal vs The State Of Jharkhand on 30 April, 2018
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1235 of 2006
Kamal Duggal .... Petitioner
Versus
1. The State of Jharkhand
2. Nanu Mishra ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioners : Mr. Indrajit Sinha, Advocate &
Mr. Ganesh Pathak, Advocate
For the State : Mr. Rajesh Mishra, APP
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Order No. 05 Dated 30th April, 2018
1. Heard Mr. Indrajit Sinha, learned counsel appearing for the petitioners and Mr. Rajesh Mishra learned counsel appearing for the State.
2. In this application the petitioner has prayed for quashing of the entire criminal proceeding including the order dated 18.05.2006 passed by learned Chief Judicial Magistrate, Jamshedpur in connection with C2 Case No. 1888 of 2006, whereby and whereunder, cognizance has been taken for the offence punishable u/s 182 and 211 of the Indian Penal Code.
3. It has been stated by learned counsel for the petitioner while referring to Section 195 of the Code of Criminal Procedure (Cr.P.C.) that the Investigating Officer (I.O.) was not competent to initiate a complaint for the offence punishable u/s 182 and 211 of the Indian Penal Code. It has been stated that a public servant concerned as defined in Section 195 Cr.P.C. with respect to the information which was given to the Officer-in-Charge concerned of concerned P.S. or some other public servant to whom he is administratively subordinate, but not an officer subordinate to the Officer- in-Charge and not the I.O. who is an ASI. So far as Section 211 I.P.C. is concerned the F.I.R. was instituted against unknown and it cannot be said that the petitioner had made a false charge of any offence with intent to injure any person. In support of his contention, learned counsel has referred to the case of P.D. Lakhani and another v. State of Punjab and another reported in (2008) 5 SCC 150 and the case of Kamal Duggal v. State of Jharkhand and another in Cr.M.P. No. 963 of 2008.
4. Learned APP for the State has opposed the prayer made by the petitioner.
5. It appears that a case was instituted by the I.O. against some unknown 2. persons about an incident of theft of 20 pieces of starter copper wire from heavy spares shed of the Supply Department, TISCO. Based on the aforesaid allegation Bistupur P.S. Case No. 98 of 2006 was instituted. The F.I.R. was addressed by the petitioner to the Officer-in-Charge, Bistupur P.S., Jamshedpur. The investigation was handed over to the ASI of police and after investigation, the I.O. had come to the conclusion that the case u/s 379 I.P.C. was false and therefore he recommended for initiation of a proceeding u/s 182/ 211 I.P.C. The complaint filed before the learned CJM was by the ASI of police, Bistupur P.S., recommending for initiation of a criminal case u/s 182/211 of the I.P.C. Whether the Investigating Officer was competent to recommend a criminal proceeding u/s 182/ 211 I.P.C. is to be answered by this Court and in regard of which reference may be made to Section 195 Cr.P.C. which reads as follows:-
"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-
(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 3. 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 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 is 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."
6. Section 195(1)(a)(i) deals with any offence punishable under sections 182 of the Indian Penal Code for which the petitioner is being prosecuted and which can be instituted only on a complaint in writing by a public servant or some other public servant to whom he is administratively subordinate. The public servant concerned as has been submitted by the learned counsel for the petitioner is the Officer-in-Charge of Bistupur P.S., as the initial information about the theft was given to him by the petitioner. Learned counsel in such circumstances refers to Section 182 of the Indian Penal Code by placing his submission that the public servant concerned is the officer-in-charge as Section 182 denotes whoever gives to any public servant any information which also relates to giving an information to a public servant. Learned counsel has stated that either it be the Officer-in- Charge of Bistupur P.S. in terms of Section 195 Cr.P.C. and by no stretch of imagination the officer to whom the officer-in-charge is administratively subordinate, is competent to initiate a proceeding u/s 182 Cr.P.C.
Section 195 Cr.P.C. speaks in very specific terms with respect to the 4. person who can institute a complaint for initiating a proceeding u/s 172 to 188 of the Indian Penal Code. Public servant concerned which is denoted u/s 195 Cr.P.C. would mean and include the person to whom the initial complaint had been made and not the Investigating Officer to whom merely charge of investigation has been given by the person who had initially complained with respect to an act of theft by the petitioner and therefore it cannot be concluded that the Investigating Officer is a public servant concerned who can initiate a proceeding u/s 182 I.P.C.
8. The powers of instituting a complaint in terms of Section 195 Cr.P.C. cannot be applicable to a subordinate officer in view of the specific provision that the complaint can be only be instituted by the public servant concerned or any other official who is higher in rank and position to the said public servant.
9. In the case of P.D. Lakhani & Anr vs State Of Punjab & Anr reported in (2008) 5 SCC 150 it was held as follows:-
"13. The report of compliance by Gian Singh was made to the CIA staff. CIA staff, in turn, placed it before the Senior Superintendent of Police. The proceedings, therefore, were, indisputably, initiated by the Senior Superintendent of Police, Jallandhar and not by the Station House Officer. The Station House Officer would have jurisdiction to investigate into the matter provided a first information report was lodged by him in terms of the complaint made by the appellant No.2. Whatever action was taken in the matter was pursuant to the order of the Senior Superintendent of Police Jalandhar.
15. The fact that the search was made pursuant to the directions issued by the Senior Superintendent of Police, Jalandhar is not in dispute. Section 195 contains a bar on the Magistrate to take cognizance of any offence. When a complaint is not made by the appropriate public servant, the Court will have no jurisdiction in respect thereof. Any trial held pursuant thereto would be wholly without jurisdiction. In a case of this nature, representation, if any, for all intent and purport was made before the Senior Superintendent of Police and not before the Station House Officer. 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, 5. 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."
10. The factual aspect appears to be similar in nature as in the case under reference the complainant was the person who was subordinate to the public servant concerned to whom the initial complaint was made.
11. The aforesaid view was followed in Cr.M.P. No. 963 of 2008 in the case of Kamal Duggal v. State of Jharkhand and other while holding that since the I.O. was junior to the officer-in-charge of the police station, the criminal proceeding initiated at the behest of the I.O. was quashed.
12. In view of the factual as well as the legal aspect which has been taken note of in the preceding paragraphs, this Court comes to a conclusion that the I.O. could not in any way had the power to initiate/ recommend a proceeding against the petitioner for the offence u/s 182 I.P.C. So far as Section 211 I.P.C is concerned, learned counsel for the petitioner submits that the offence of theft was alleged against unknown person as such there was never an intention on the part of the petitioner against any person with an intent to injure any person and therefore Section 211 I.P.C. is not applicable against the petitioner.
In absence of the petitioner having named any person of being involved in commission of theft as alleged, Section 211 I.P.C. is not made out against the petitioner and so far as the Section 182 is concerned, the I.O. was not competent to institute the complaint as the same could only have been instituted by the public servant concerned or any other official who was higher in rank and position to whom initially the complaint was made by the petitioner.
14. This application is accordingly allowed and the entire criminal proceeding including the order dated 18.05.2006 passed by learned Chief Judicial Magistrate, Jamshedpur in connection with C2 Case No. 1888 of 2006, whereby and whereunder, cognizance has been taken for the offence punishable u/s 182 and 211 of the Indian Penal Code, is hereby quashed and set aside.
MK (RONGON MUKHOPADHYAY, J.)