Madhya Pradesh High Court
Darshan Singh vs The State Of Madhya Pradesh on 27 July, 2017
1 M.Cr.C. No.6103/2014
(Darshan Singh Vs. State of M.P.)
AFR
27/7/2017
Shri R.K. Bohare, Advocate for applicant.
Shri Prakhar Dhengula, Panel Lawyer for
respondent/State.
Shri R.K. Sharma, Senior Advocate, with Shri M.K. Chaudhary, Advocate for complainant.
This application under Section 482 of Cr.P.C. has been filed against the order dated 27/5/2014 passed by Fourth Additional Sessions Judge, Gwalior in Criminal Revision No.70/2014 affirming the order dated 11/12/13 passed by the JMFC, Gwalior in Criminal Case No.352/2012 by which the charge under Sections 182 and 211 of IPC has been framed against the applicant.
The necessary facts for the disposal of the present application in short are that the applicant had filed a private criminal complaint against one Yudhisthir Singh alleging that Yudhisthir Singh was earlier working as Superintendent of Police and after retirement, he had assured that he would help him in procuring job in the Police Department and took an amount of Rs.50,000/-. The applicant waited for a period of six months and in the meanwhile Yudhisthir Singh assured him on various occasions that he would get the job. On 30/7/2006 when the applicant went to the house of Yudhisthir Singh for demanding his money back, at that time Yudhisthir Singh and Gajendra Singh abused him and humiliated & insulted him by calling him by his caste's name. When the applicant objected to the conduct of Yudhisthir Singh and Gajendra Singh, at that time Gajendra Singh slapped him. When the applicant still insisted that he would go back only after taking the amount, then again he was beaten by fists 2 M.Cr.C. No.6103/2014 (Darshan Singh Vs. State of M.P.) AFR and blows by Yudhisthir Singh and Gajendra Singh and he was pushed out of the house. A complaint was made to Police Station Kampoo, District Gwalior, but as Yudhisthir Singh was a retired Superintendent of Police, therefore, no action was taken and accordingly a complaint under Sections 420, 406, 323, 294, 506-B of IPC and under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was filed. The Magistrate passed an order under Section 156 (3) of Cr.P.C. and accordingly the matter was investigated by Dy.SP, AJK, Gwalior and after concluding the investigation, a closure report was filed, which was accepted by the Magistrate.
It is submitted that thereafter a criminal complaint was filed by the SHO, Police Station Kampoo, District Gwalior for offence under Sections 182 and 211 of IPC. The Magistrate by order dated 11/12/2013 framed charge under Sections 182 and 211 of IPC against the applicant.
Being aggrieved by the order of the Magistrate, the applicant filed a Criminal Revision, which too has suffered dismissal by order dated 27/5/2014 passed by the Fourth Additional Sessions Judge, Gwalior in Criminal Revision No.70/2014.
A singular submission has been made by the counsel for the applicant that in the present case the investigation was done by Dy.SP, AJK, Gwalior, whereas the complaint was filed by the SHO, Police Station Kampoo, District Gwalior. It is submitted that where the matter was investigated by a police officer and if the complaint is found false, then the complaint should have been filed by the same police officer and he cannot delegate his powers to his subordinate for the purpose 3 M.Cr.C. No.6103/2014 (Darshan Singh Vs. State of M.P.) AFR of filing of complaint for offence under Sections 182 and 211 of IPC.
Per contra, it is submitted by the counsel for the State that in Section 195 (1) (a) of Cr.P.C. the words "public servant" have been mentioned and, therefore, since the SHO, Police Station Kampoo, District Gwalior is also a public servant working in the Police Department and the allegations are that the false allegations were made by the applicant against one Yudhisthir Singh, therefore, he is also a competent public person to file the complaint for offence under Sections 182 and 211 of IPC.
Heard learned counsel for the parties.
The moot question for determination is that:-
"Where the investigating officer after conducting the investigation has come to a conclusion that the complaint made by the complainant is false warranting his prosecution for offence under Sections 182 and 211 of IPC, then whether the complaint is to be filed by the investigating officer himself or whether he can delegate his authority to somebody else for filing the complaint?"
The question arising in this case is no more res integra. The Supreme Court in the case of P.D. Lakhani and another Vs. State of Punjab and another reported in (2008) 5 SCC 150 has held as under:-
"11. Section 182 of the Penal Code, 1860 indisputably, provides for an offence falling under Chapter X of the Penal Code. Section 195 provides for prosecution for contempt of lawful authority of public servant, for offences 4 M.Cr.C. No.6103/2014 (Darshan Singh Vs. State of M.P.) AFR against public servant and for offences relating to documents given in evidence. It contains an embargo stating that "no court shall take cognizance of an offence punishable, inter alia, under the aforementioned provision except on the complaint in writing by the public servant concerned or by some other public servant to whom he is administratively subordinate".
"Contempt of a public servant" has a definite connotation. Such contempt must be provided for by law. It must be found to be false. The Station House Officer, Jalandhar did not act on the said complaint. He asked the Appellant 2 to bring the same to the notice of the Senior Superintendent Police, Jalandhar, Complaint Branch, which he did. It was, thus, a complaint to a higher authority.
12. The Senior Superintendent of Police only had asked the Superintendent of Police, Detective Branch to enquire into the matter and report within seven days. Shri Gian Singh, pursuant thereto was asked to carry out the necessary search of the premises of the second respondent.
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, Jalandhar 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
2. Whatever action was taken in the matter was pursuant to the order of the Senior Superintendent of Police Jalandhar.
14. The High Court, in our opinion, thus, committed a manifest error insofar as it held that as the complaint was addressed to the SHO, he was the appropriate authority to 5 M.Cr.C. No.6103/2014 (Darshan Singh Vs. State of M.P.) AFR lodge a complaint in respect of an offence punishable under Section 182 of the Penal Code.
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, 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.
16. We may notice that in terms of sub-section (3) of Section 340 of the Code, a complaint may be signed by such an officer as the High Court may appoint if the complaint is made by the High Court. But in all other cases, the same is to be done by the presiding officer of the Court or by such officer of the Court as it may authorise in writing in this behalf. Legislature, thus, wherever thought necessary to empower a court or public servant to delegate his power, made provisions therefor. As the statute does not contemplate delegation of his power by the Senior Superintendent of Police, we cannot 6 M.Cr.C. No.6103/2014 (Darshan Singh Vs. State of M.P.) AFR assume that there exists such a provision. A power to delegate, when a complete bar is created, must be express; it being not an incidental power.
17. In Daulat Ram v. State of Punjab [(1962) 2 SCR 812], Hidayatullah, J. (as the learned Judge then was), held as under :
"4. ... In our opinion, this is not a due compliance with the provisions of that section. What the section contemplates is that the complaint must be in writing by the public servant concerned and there is no such compliance in this case."
The said decision was followed by a Division Bench of this Court in State of U.P. v. Mata Bhikh & Ors. [(1994) 4 SCC 95], stating :
"7. A cursory reading of Section 195(1)(a) makes out that in case a public servant concerned who has promulgated an order which has not been obeyed or which has been disobeyed, does not prefer to give a complaint or refuses to give a complaint then it is open to the superior public servant to whom the officer who initially passed the order is administratively subordinate to prefer a complaint in respect of the disobedience of the order promulgated by his subordinate. The word 'subordinate' means administratively subordinate i.e. some other public servant who is his official superior and under whose administrative control he works."
The said decisions are squarely applicable to the facts of the present case.
18. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. Appeal is allowed. However, there cannot be any doubt whatsoever that another complaint petition would be maintainable at the instance of the appropriate authority."
7 M.Cr.C. No.6103/2014(Darshan Singh Vs. State of M.P.) AFR Thus, it is clear that in absence of any provision permitting the delegation of power to file complaint, the complainant cannot delegate his powers to somebody else for filing a criminal complaint for offence under Sections 182 and 211 of IPC. In the present case, undisputedly the investigation was done by Dy.SP, AJK, Gwalior and, therefore, the complaint should have been filed by the Dy.SP, AJK, Gwalior for offence under Sections 182 of IPC because it was the investigating officer to whom the false information was given with an intent to cause the public servant to use his lawful power to the injury of another person.
So far as offence under Section 211 of IPC is concerned, the Magistrate cannot take cognizance of the said offence on a complaint filed by the SHO, Police Station Kampoo, District Gwalior. In view of the bar as contained in Section 195 (1) (b) of Cr.P.C., it is clear that no Court shall take cognizance of an offence under Section 211 of IPC except on the complaint in writing of that Court or by such officer of the Court, as the Court may authorize in writing in that behalf or by such other Court to which that Court is subordinate.
Thus, it is clear that the complaint for offence under Sections 182 and 211 of IPC was filed by an incompetent person. When a complaint is not made by an appropriate public servant or the Court, then the Court will not have any jurisdiction to take cognizance of the same. Accordingly, it is held that the Magistrate committed material illegality by taking cognizance and by framing charge under Sections 182 and 211 of IPC. Similarly, the Revisional Court also committed material illegality by dismissing the revision. Accordingly, the 8 M.Cr.C. No.6103/2014 (Darshan Singh Vs. State of M.P.) AFR order dated 11/12/2013 passed by the JMFC, Gwalior in Criminal Case No.352/2012 and order dated 27/5/2014 passed by the Fourth Additional Sessions Judge, Gwalior in Criminal Revision No.70/2014 are set aside. The further proceedings pending before the Court of JMFC, Gwalior in Criminal Case No.352/2012 against the applicant for offence under Sections 182 and 211 of IPC are hereby quashed. The application succeeds and is hereby allowed.
(G.S. Ahluwalia) Judge Arun*