Punjab-Haryana High Court
Sidak Singh Sandhu vs Ut Chd And Anr on 27 July, 2022
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
289
CRM-M-19407-2022 (O&M)
Date of decision: 27.07.2022
SIDAK SINGH SANDHU
....Petitioner(s)
Versus
U.T. CHANDIGARH AND ANOTHER
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
*****
Present : Mr. Kanwaljit Singh, Sr. Advocate assisted with
Ms. Neha A. Mahajan, Advocate
for the petitioner.
Mr. Sumit Jain, Addl. P.P., for UT Chandigarh.
*****
VINOD S. BHARDWAJ. J. (ORAL)
The instant petition has been filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC') for seeking quashing of FIR bearing No.43 dated 28.03.2020 registered under Section 188, 269 and 270 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') registered at Police Station North Chandigarh and all conseq uential proceedings arising therefrom.
2. The instant case has been initiated on the statement of ASI Jaspal Singh which reads thus:
"Statement of ASI Jaspal Singh 1317/CP, Police Station Sector 3, Chandigarh. Stated that I am posted as A.S.I. in Beat No.02, Police Station Sector 3, Chandigarh. Today, at about 7.30 P.M., when 1, in connection with patrolling, crime check & implementation of Curfew imposed on account of Covid 19 Corona Virus, was present near Atal Sehbhagita Kender, Sector 10, Chandigarh, I found that a person, whose name I later came to know as Sidak Singh son of Davinder Singh Sandhu, resident of 292, Sector 10,. Chandigarh, was walking in Leisure Valley. I called him and told him that you just can't 1 of 17 ::: Downloaded on - 26-12-2022 07:32:58 ::: CRM-M-19407-2022 (O&M) -2 -
roam here during curfew hours. As there was no response from his side, hence I, ASI, alongwith Constable, arrived inside Leisure Valley and found that said Sidak Singh Sandhu was wearing head phone on his ears and having a walk. I asked him to stop and enquired, on which the said youngster told that he has come from Canada on 19.3.2020 and that he has not given any intimation regarding his arrival to Chandigarh Administration or Police. Said Sidak Singh Sandhu has violated Order No.DM/MA/2020/7293 dated 23.3.2020, issued by the Deputy Commissioner during curfew period. This way, said Sidak Singh Sandhu has committed an offence punishable U/s. 188, 269, 270 IPC, as he didn't give any intimation regarding his arrival from Canada to the Chandigarh Administration, nor quarantined himself at home. Yesterday also, I found said Sidak Singh Sandhu having walk in Leisure Valley, on which, I called him from distance and sent him back, & warned him not to come out again. Hence an offence punishable U/s. 188, 269, 270 IPC is made out."
The facts and submissions on behalf of the petitioner
3. Learned Senior counsel appearing on behalf of the petitioner contends that the petitioner had arrived in India on 19.03.2020 and was residing in Sector-
10, Chandigarh. The petitioner, upon completion of his studies in Canada, had applied for a job and had already been shortlisted for appointment as an intern in Toronto, Canada. He was supposed to join at his place of appointment in the month of May, 2022. He submits that the petitioner had arrived in India on 19.03.2020 and that the lockdown was imposed vide order dated 23.03.2020 (Annexure P-6). As per the said order, a curfew was imposed restraining persons from leaving their homes and further assembly of five or more persons was prohibited.
4. On 28.03.2020, the petitioner was standing outside the gate of his 2 of 17 ::: Downloaded on - 26-12-2022 07:32:58 ::: CRM-M-19407-2022 (O&M) -3 -
house, which is opposite the Leisure Valley, Sector 10 Chandigarh when the patrolling party noticed him standing outside the house and apprehended him. It has been contended that the mere fact of the petitioner standing outside of his house would not amount to leaving his home or moving on foot on any road or place and the petitioner never violated any limitation imposed by the order dated 23.03.2020. He contends that the offence punishable under Section 269 and 270 IPC are not attracted inasmuch as the petitioner was not suffering from any infectious or contagious disease. He places reliance on the information received under the Right to Information Act, 2005 on 05.05.2022 from the office of Deputy Superintendent of Police-cum-Central Public Information Officer, Chandigarh wherein it is informed that no COVID test of the petitioner was got conducted. As such, there is no documentary evidence available to even remotely suggest that the petitioner had been suffering from any infectious or contagious disease and that in the absence of any such evidence, the offence under Section 269 and 270 IPC cannot be said to be attracted. The relevant extract of the averments and submissions advanced by the learned Senior counsel in the petition are extracted as under:
"8. That the petitioner submits that the FIR No. 43, dated 28.03.2020 registered Under Section 188, 269 & 270 IPC registered at Police Station Sector-3, Chandigarh is gross abuse of process of law as it has been repeatedly held by the Hon'ble Courts that Section 188 IPC is not attracted when there is no obstruction or annoyance or injury to any person and in view of the provisions of Section 195 Cr.P.C., no court shall take of cognizance of any offence punishable under section 172 to 188 IPC except on the complaint in writing of a public servant concerned or some other public servant who administratively empowered. The present FIR has been lodged 3 of 17 ::: Downloaded on - 26-12-2022 07:32:58 ::: CRM-M-19407-2022 (O&M) -4 -
at the instance of Respondent No. 2 who allegedly found that the petitioner is having a walk in front of his house in leisure valley, at 7.30 pm, therefore, the offence of Section 188 IPC is not attracted as he never informed any superior officer nor he himself was empowered to get the FIR lodged. It may also be relevant to mention here that the FIR is shown to have been registered on 28.03.2020 at 22.07 hrs by which time the petitioner had already been taken to the Police Station where health team was called however, the team did not conduct the test as there were no symptoms and no test was conducted, therefore to lodge an FIR Under Section 188, 269 and 270 IPC on 28.03.2020 itself is completely misuse and abuse of the lawful process and as such the present FIR and all the consequential Proceedings pending before Chief Judicial Magistrate, Chandigarh for 07.05.2022 are liable to be quashed.
9. That the Petitioner submits that even the offence under Sections 269 and 270 IPC which pertains to negligent Act likely to spread infection of disease dangerous to life are not attracted in the present case as the team did not conduct the test as there were no symptoms and no test was conducted which is evident from the information obtained under RTI thus, even the provisions of Sections 269 and 270 IPC are not attracted. No Covid test was carried out under the supervision of the police officials of Police Station, Sector-3, Chandigarh although the health team was called who did not conduct the test as there were no symptoms. Even in the Challan presented on 25.04.2022, no report has been annexed, therefore, the petitioner submits that even the provisions of offences of Section 269 and 270 IPC are not attracted in any manner in the present case in absence of positive Covid-19 report.
14. That with respect to the offence under section 269 and 270 IPC, it is required of the prosecution that the person should be 4 of 17 ::: Downloaded on - 26-12-2022 07:32:58 ::: CRM-M-19407-2022 (O&M) -5 -
suffering from Covid-19 positively and was wandering in an around the neighboring area or in the locality in violation of the Regulation relating to Lockdown due to pandemic situation and spreading infection. The petitioner having not been found Covid-19 positive due to lack of conducting the test and since there were no symptoms, the ingredients of offence punishable under section 269 and 270 IPC are not attracted.
16. That the Petitioner also submits that without getting the positive report of Covid-19, the registration of FIR for the provisions under Section 269 and 270 IPC was itself an illegality and a complete abuse of the lawful process at the hands of the prosecution. Neither the Petitioner has spread any infection nor any disease which is dangerous to life. The petitioner being a citizen of Canada throughout has been behaving and was not suffering from Covid-19 pandemic even. There is absolutely no material produced in the Charge sheet to substantiate the fulfillment of the ingredients of Section 188 or 269 or 270 IPC and even the Covid test of the petitioner was not performed.
17. That the petitioner is a young boy and had studied in the University of Toronto since 2016 and now the petitioner had been offered a good job of "Clinic Coordinator". The petitioner is already booked to go back on 24.05.2022 to Canada which is evident from the Air Ticket (Annexure P-5). At the time of filing of the Challan and granting bail to the petitioner, the Ld. Trial Court on 25.04.2022 directed the Petitioner to not to leave the Country without prior permission of the Court.
5. It is thus argued that in the absence of the essential ingredients to satisfy the requirement of attracting Section 269 and 270 IPC, the FIR in question could not have been registered. It is further contended that insofar as the offence related to Section 188 IPC is concerned, a complaint in this regard has to be instituted as per the provisions of Section 195 CrPC as cognizance of the offence 5 of 17 ::: Downloaded on - 26-12-2022 07:32:58 ::: CRM-M-19407-2022 (O&M) -6 -
punishable under the said Section cannot be taken except on a complaint in writing by the public servant concerned i.e. Deputy Commissioner in the present case.
6. As a parting argument, it is also contended that assuming that the proceedings under Section 188 IPC are held maintainable, the FIR in present case had been registered on 28.03.2020 and the final report in the case had been filed on 01.02.2022. As the offence prescribes a simple imprisonment for a period of one month, the same would be time barred in terms of Section 468 CrPC.
Submissions and arguments on behalf of the respondent-UT Chandigarh
7. Learned Additional Public Prosecutor appearing on behalf of respondent contended that the petitioner had violated the order of the Deputy Commissioner dated 23.03.2020 (Annexure P-6) and that upon conclusion of the investigation, a final report has already been filed. He further contends that since a cognizable offence was involved in the instant case, the FIR had been registered in terms of the ratio laid down by the Hon'ble Supreme Court in the matter of Lalita Kumari vs. State of Uttar Pradesh reported as 2000 Volume II SCC Page 1.
8. He further contends that the complaints pertaining to offence punishable under Section 188 IPC had been instituted by the police officials due to the unprecedented situation of COVID-19. It has also been contended that the PIL seeking quashing of the offences under Section 188 IPC was also dismissed by the Hon'ble Supreme Court. The relevant extract of the reply filed by the respondent is extracted as under:-
"6. That the petitioner has taken a plea in his petition that section 188 IPC is governed by the provisions of section 195(1)(a) Cr.P.C. which says that cognizance in respect of offence under sections 172 to 188 IPC cannot be taken except "on the complaint in writing of the public servant concerned or 6 of 17 ::: Downloaded on - 26-12-2022 07:32:58 ::: CRM-M-19407-2022 (O&M) -7 -
of some other public servant to whom he is administratively subordinate." That due to the unprecedented situation of COVID 19 in March, 2020, such complaints were given by the police officials itself and the Hon'ble Apex Court has also dismissed the PIL filed for quashing of offences u/s 188 IPC during the COVID-19 situation in the case of "Dr. Vikram Singh vs Union of India & Anr."
9. It is further contended that once a non-cognizable offence is reiterated along with cognizable offence, the matter has to be tried as a cognizable offence.
There is however no denial of the fact that the medical examination of the petitioner had not been conducted by the investigating agency despite registration of the case and that there is no evidence available on the record on the basis whereof it may be prima facie opined that the petitioner was suffering from any infectious disease or that by his act he has caused spreading of infectious disease dangerous to life.
10. I have heard learned counsel appearing on behalf of the respective parties and have gone through the record with their able assistance.
11. The final report upon conclusion of investigation has been appended along with present petition as Annexure P-8. As per the aforesaid report, there is no evidence to suggest that the petitioner was medically examined after his arrest in order to ascertain that he was suffering from any infectious disease. It is also evident that even the information received by the petitioner under the Right to Information Act, 2005 appended along with this petition as Annexure P-7 has not been disputed or denied. It is thus evident that there was no basis for the prosecution to ascertain as to whether the petitioner was suffering from any communicable/infectious disease or not. Besides, the reply does not make any reference to establish as to how the factum of the order dated 20.03.2020 was 7 of 17 ::: Downloaded on - 26-12-2022 07:32:58 ::: CRM-M-19407-2022 (O&M) -8 -
made known to public at large. It shall also be significant to refer to the relevant provisions under which the present case has been registered. The same are reproduced as under:-
Section 188 IPC. Disobedience to order duly promulgated by public servant.--Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation.--It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section. Section 269 IPC. Negligent act likely to spread infection of disease dangerous to life.--Whoever unlawfully or negligently does any act which is, and which he knows or has reason to
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believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
Section 270 IPC. Malignant act likely to spread infection of disease dangerous to life.--Whoever malignantly 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 of either description for a term which may extend to two years, or with fine, or with both. Section 195 CrPC. 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 9 of 17 ::: Downloaded on - 26-12-2022 07:32:58 ::: CRM-M-19407-2022 (O&M) -10 -
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 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 10 of 17 ::: Downloaded on - 26-12-2022 07:32:58 ::: CRM-M-19407-2022 (O&M) -11 -
case or proceeding in connection with which the offence is alleged to have been committed.
12. A Division Bench of Bombay High Court has held in Criminal Application No.453 of 2020 decided on 21.09.2020 titled as HLA SHWE Vs. State of Maharashtra that the person sought to be prosecuted under Sections 269 and 270 IPC must commit an act with a knowledge that he is likely to spread infection of any disease. The relevant extract of the observation recorded by the Division Bench of the Bombay High Court is extracted as under:
14. To attract ingredients of Sections 269 and 270, the person must commit any act which he knows is likely to spread infection of any disease which is dangerous to life. It is not in dispute that the applicants had undergone Covid-19 test during their period of quarantine i.e. from 03.04.2020 and their test report for infection of Covid-19 was negative. It is also not disputed that they were kept in isolation from 24.03.2020 till 31.03.2020 under the supervision of Dr Khawaj, NMC Zonal Officer, Mominpura, Nagpur. There is no material on record to prove that applicants had indulged in any act which was likely to spread infection of COVID -19. Therefore, from the material produced in the charge-sheet, there is no evidence to substantiate the fulfillment of ingredients of Sections 269and270of the Indian Penal Code.
(...)
17. The ingredients of the offence under Section 188 of Indian Penal Code are the following:-
(1) There was promulgation of an order by a public servant lawfully empowered to promulgate such order; (2) Such order directed the accused to abstain from a certain act or to take certain order with certain property in his possession or under his management; (3) The accused was aware of such order;
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(4) He disobeyed such order;
(5)Such disobedience caused or tended to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed or such disobedience caused or tended to cause danger to human life, health or safety, or a riot or affray.
18. Section 188 of the Indian Penal Code deals with disobedience to orders duly promulgated by the public servant. The offence, as already stated, is allegedly disobedience to the orders duly promulgated by the Collector. Section 195 of the Code lays down that no Court shall take cognizance of any offence punishable under Sections 172 to 188(both inclusive)of the Indian Penal Code, except on the complaint in writing to the public servant concerned or of some other public servant to whom he is administratively subordinate. In the present case, there is no complaint filed by Collector or his subordinate officer. The Sub-Inspector of Police has filed the charge-sheet. In Daulat Ram v. State of Punjab [AIR 1962 SC 1206] , the Hon'ble Supreme Court held that the prosecution under Section 182of the Indian Penal Code must be on a complaint in writing by the Tahsildar (public servant). In view of absolute bar against the Courts for taking cognizance of the offence punishable under Section 182 of the Indian Penal Code, except in the manner provided by Section 195 of the Code, the said judgment equally applies to the offence under Section 188 also. In the present case, there is no complaint in writing by the public servant concerned or by some other public servant to whom he is administratively subordinate. Therefore, in view of the bar under Section 195(1)(a)of the Code, the learned Magistrate ought not to have taken cognizance of the offence punishable under Section 188Indian Penal Code on the report submitted by the Sub-Inspector of Police. Therefore, we are of the considered view that the cognizance is taken contrary to the 12 of 17 ::: Downloaded on - 26-12-2022 07:32:58 ::: CRM-M-19407-2022 (O&M) -13 -
specific bar envisaged underSection 195(1)(a)of the Code. In M.S. Ahlawat v. State of Haryana[2000(1) SCC 278] , the Hon'ble Supreme Court considered the provisions prescribed underSection 195of the Code at length and observed in paragraph 5 as under:
"5. ...Provisions of section 195CrPC 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."
13. Furthermore, the aforesaid issue was also examined by this Court in CRM-M-51595 of 2021 titled as Pawan Giri and others Vs State of Haryana which reads thus:-
10. A perusal of Section 269 IPC shows that in order to attract the same, the act of an accused must be one which is likely to spread infection of any disease dangerous to life. A perusal of the report filed by respondent under Section 173 Cr.P.C. does not indicate any primafacie evidence collected by the Police as to whether the petitioner or the other members of the family were suffering from any infectious disease or would have caused spread of any infectious disease. In the absence thereof, it cannot be assumed that the petitioners were either the carriers of infection or would have caused spread thereof.
Apart therefrom, the report also does not indicate the exact guideline purportedly alleged to have been violated. In the absence of any such specific guidelines which is alleged to have been violated, there is no presumption that the act of the petitioners was unlawful. Further, perusal of the notification dated 01.04.2020 shows that the said notification was in the nature of a prohibition imposed upon the shops selling medicines and was not against other person. Hence, the action of the petitioners in seeking procurement of essential medicines during the permissible hours of operation cannot be held to be 13 of 17 ::: Downloaded on - 26-12-2022 07:32:58 ::: CRM-M-19407-2022 (O&M) -14 -
unlawful. In the absence of the respondents to refer to any order, the disobedience whereof is sought to be alleged against the petitioners, it cannot be perceived that the petitioners have committed an offence under Section 269 IPC.
11. It is further pertinent to observe that Section 195 Cr.P.C. imposes certain restrictions on the authority of the public servant to prosecute under the relevant sections. The Courts are prohibited from taking cognizance of the offences mentioned therein unless and until the public servant or their superior makes the complaint. Section 195 opens with the word "No Court" and thus imposes a bar against any Court to take cognizance of the offences contemplated thereunder except in accordance with the procedure prescribed therein.
"Complaint" has been defined under Section 2 (d) of the Cr.P.C. and has to be filed in accordance with the procedure prescribed thereunder. The order of prohibition does not refer to any restrictions against the purchasers and consumers on the restrictions against opening of the shops. The subordinate officials are only required to ensure enforcement of the said order and it does not make them an authority whoses' order has been disobeyed. The violation, if any, shall remain as that of the authority propagating the order. It has been held by the Supreme Court in the matter of "P.D. Lakhani and Others versus State of Punjab' reported as (2008) 5 SCC 150 that the functions of the Public Servant under Section 195 cannot be delegated. The observations as recorded in Para 15 by the Hon'ble Supreme Court in its above said judgment are extracted as under:
"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 14 of 17 ::: Downloaded on - 26-12-2022 07:32:58 ::: CRM-M-19407-2022 (O&M) -15 -
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 leaned Magistrate by the Station House Officer. Even assuming that the same was done under the directions of the Senior Superintendent of Police, Jalandhar, Section 195, in no uncertain terms, 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."
12. Needless to mention that registration of case under Section 188 IPC is merely intended to set the criminal law in motion. Power of police to investigate an offence is not controlled or regulated by Section 195 Cr.P.C. The aforesaid statutory provision however does restrict the manner in which cognizance of the offence is to be taken by the Court. It has been held by the Hon'ble Supreme Court in the matter of 'State of Punjab versus Raj Singh and another' (1998) 2 SCC 391 as under:
"We are unable to sustain the impugned order of the High Court quashing the F.I.R. lodged against the respondents alleging commission of offences under Sections 419, 420, 467 and 468 I.P.C. by them in course of the proceeding of a civil suit, on the ground that Section 195 (1) (b) (ii) Cr.P.C. prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195 Cr.P.C. it is manifest that it comes into operation at the stage when the Court intends 15 of 17 ::: Downloaded on - 26-12-2022 07:32:58 ::: CRM-M-19407-2022 (O&M) -16 -
to take cognizance of an offence under Section 190(1) Cr. P.C.; and it has nothing to do with the statutory power of the police to investigate into an F.I.R. which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceeding in Court. In other words, the statutory power of the Police to investigate under the Code is not in any way controlled or circumscribed by Section 195 Cr.P.C. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the Court would not be competent to take cognizance thereof in view of the embargo of Section 195 (1) (b) Cr. P. C. , but nothing therein deters the Court from filing a complaint for the offence on the basis of the F.I.R. (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in section 340 Cr. P.C.................."
13. It is undisputed that the complaint in question was not filed by the authority that had issued the order or by an authority to which such authority was subordinate.
14. It has also been held by the Hon'ble Supreme Court that in the matter of "Basir-ul-haq versus State of Punjab" reported as AIR 1953 SC 293, the prosecuting agency cannot be permitted to evade the application of Section 195 by resorting to devices or camouflages. The test as to whether there is any evasion or not is whether the facts disclose primarily and essentially an offence for which a complaint of the public servant is required. The prosecuting agency thus cannot take take aid of Section 269 IPC to justify filing of the report under Section 173 Cr.P.C. especially when the essential ingredients of Section 269 IPC are not made out from the final report.
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15. xxx
16. A perusal of the FIR and the final report fail to make out the essential ingredients of offence under Section 269 IPC and the case would fall in category (1) and (3)
14. The Court cannot remain oblivious to the material which forms part of the final report and turn a blind eye to the absence of any material to satisfy the ingredients of the offences or the mandatory procedure prescribed in law.
15. In view of the above, the instant petition is allowed and the FIR bearing No.43 dated 28.03.2020 registered under Section 188, 269 and 270 of the Indian Penal Code, 1860 registered at Police Station North Chandigarh and all consequential proceedings arising therefrom are quashed.
(VINOD S. BHARDWAJ)
JUDGE
July 27, 2022
S.Sharma(syr)
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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