Punjab-Haryana High Court
Dr. Sham Lal Thukral vs The State Of Punjab on 28 July, 2008
Author: Rajesh Bindal
Bench: Rajesh Bindal
Criminal Misc. No. 19680-M of 2006 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
****
Criminal Misc. No. 19680-M of 2006 (O&M) Date of Decision:28.7.2008 Dr. Sham Lal Thukral .....Petitioner Vs. The State of Punjab .....Respondent CORAM:- HON'BLE MR. JUSTICE RAJESH BINDAL Present:- Mr. R.K. Battas and Mr. R.K. Singla, Advocates for the petitioner.
Mr. Anter Singh Brar, DAG, Punjab.
Mr. J.S. Brar, Advocate.
**** RAJESH BINDAL J.
The prayer in the present petition is for quashing of kalendra filed against the petitioner under Section 182 IPC (Annexure P-1) and order dated 9.6.2004 (Annexure P-3) passed by the learned Judicial Magistrate First Class, Bathinda summoning the petitioner to face trial in kalendra filed under Section 182 IPC and the order dated 11.3.2006 (Annexure P-2) passed by the learned Additional Sessions Judge (Adhoc), Fast Track Court, Bathinda dismissing the revision against the summoning order as not maintainable.
Briefly, the facts are that the petitioner filed a complaint with the SSP, Bathinda with the request for registration of a criminal case against Kartar Singh Jaura for committing fraud by getting sale deed of 324 square yards registered whereas the actual ownership of the vendor was merely 194 square yards. On receipt of the application, the same was marked for inquiry. On inquiry, the case set up by the petitioner was found to be false. However, before enquiring, no FIR was registered. The complaint made by the petitioner having been found to be false, opinion was sought from Deputy District Attorney (Legal), who recommended for initiation of proceedings under Section 182 IPC which was approved by the SSP, Bathinda on 5.2.2003 and it was on the basis thereof, the impugned kalendra was presented against the petitioner under the signatures of SHO, Police Station, Bathinda. On presentation of kalendra vide order dated 9.6.2004, the petitioner was summoned by the learned Judicial Magistrate First Class.
Criminal Misc. No. 19680-M of 2006 (O&M) -2-Aggrieved against the order of the Magistrate, the petitioner preferred revision before the learned Additional Sessions Judge, Bathinda who vide order dated 11.3.2006 dismissed the same as not maintainable, inter-alia holding that the revision against the summoning order was not maintainable, the same being interlocutory in nature. Only a petition under Section 482 Cr.P.C was maintainable.
Learned counsel for the petitioner raised various submissions that the impugned kalendra itself was incompetent for the reason that undisputedly the complaint was filed by the petitioner to the SSP, Bathinda whereas the kalendra was presented before the Court under the signatures of SHO, Police Station Bathinda. The filing of kalendra under the signatures of SHO, Police Station, Bathinda when the complaint was made to the SSP, Bathinda does not fulfil the requirements of law. Presentation of kalendra by the police without holding investigation after registration of FIR is incompetent as in the present case the only inquiry was made by the police on a complaint by the petitioner. Finally, the submission was that the learned Court below was totally wrong in holding that the revision before it was not competent as the summoning order was interlocutory in nature, whereas summoning order cannot be termed as interlocutory as the quashing thereof will have the result of terminating the proceedings in its entirety. Reliance has placed upon a judgment of Hon'ble the Supreme Court in Rajendra Kumar Sitaram Pande and others v. Uttam and Another, (1999) 3 Supreme Court Cases 134.
Learned counsel for the respondent submitted that though SSP, Bathinda had not signed the kalendra but it was attested by him and such a defect cannot be held to be fatal. As regards the maintainability of revision before the learned Additional Sessions Judge, he did not dispute the proposition of law that the revision before the Sessions Judge against the summoning order was maintainable as the same cannot be held to be interlocutory in nature.
Heard learned counsel for the parties and perused the paper book.
As far as the issue regarding maintainability of revision is concerned, the same has been gone into by this Court in Dr. Gurpreet Kaur and another v. State of Punjab and another, 2008(2) RCR Criminal Misc. No. 19680-M of 2006 (O&M) -3- (Criminal) 285 and it was opined that a summoning order cannot be held to be interlocutory in nature as in case of acceptance of challenge there\to the entire proceedings against the petitioner therein would culminate. The relevant portion from judgment is extracted below:-
"5. Hon'ble the Supreme Court in Rajendra Kumar Sita Ram Pande and others v. Uttam and another, 1999(1) RCR (Criminal) 800 : (1999) 3 Supreme Court Cases 134, while considering the issue as to whether order of the Magistrate directing issuance of process is interlocutory in nature, answered the same in negative. The relevant passages from the judgments are extracted below:-
"5. The very object of conferring revisional jurisdiction upon the superior criminal courts is to correct miscarriage of justice arising from misconception of law or irregularity of procedure.
6. Discretion in the exercise of revisional jurisdiction should, therefore, be exercised within the four corners of Section 397, whenever there has been miscarriage of justice in whatever manner. Under sub-section (2) of Section 397, there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression "interlocutory order" has not been defined in the Code. In Amar Nath v. State of Haryana, this Court has held that the expression "interlocutory order" in Section 397(2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an "interlocutory order". In Madhu Limaye v. State Criminal Misc. No. 19680-M of 2006 (O&M) -4- of Maharashtra, a three Judge Bench of this Court has held an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding, cannot be held to be an interlocutory order. In V.C. Shukla v.
Stat this Court has held that the term "interlocutory order" used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi- final. This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi- final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under sub-section (2) of Section 397 of the Code."
6. In Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. nd others, 2001(4) RCR (Criminal) 137, Hon'ble the Supreme Court while considering the issue as to what should be considered to be an order of interlocutory nature opined that if the result of acceptance of revision is termination of proceedings in its entirety, the same cannot be termed to be interlocutory in nature. The relevant passage is extracted below:-
Criminal Misc. No. 19680-M of 2006 (O&M) -5-8. The interdict contained in Section 397(2) of the Code of Criminal Procedure (for short "the Code") is that the powers of revision shall not be exercised in relation to any interlocutory order.
Whether an order is interlocutory or not, cannot be decided by merely looking at the order or merely because the order was passed at the interlocutory stage. The safe test laid down by this Court through a series of decisions is this: if the contention of the petitioner who moves the superior court in revision, as against the order under challenge is upheld, would the criminal proceedings as a whole culminate? If they would, then the order is not interlocutory in spite of the fact that it was passed during any interlocutory stage.
9. A three Judges Bench of this Court in Madhu Limaye v. State of Maharashtra laid down the following test : (SCC p.560, para 15).
"An order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2)."
7. Similar view was expressed by Hon'ble the Supreme Court in K.K. Patel's case (supra). Para 11 thereof is relevant:-
"11. That apart, the view of the learned Single Judge of the High Court that no revision was maintainable on account of the bar contained in Section 397(2) of the code, is clearly erroneous. It is now well- nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath v. State of Haryana, Madhu Criminal Misc. No. 19680-M of 2006 (O&M) -6- Limaye v. State of Maharashtra, V.C. Shukla v. State through CBI and Rajendra Kumar Sitaram Pande v. Uttam). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable"
To the similar effect is the judgment of Bombay High Court in Ashok Mehta v. State of Maharashtra and others, 2005(4) RCR (Criminal) 584.
Accordingly, the view expressed by the Court below that the revision was not maintainable, the summoning order being interlocutory is totally erroneous and, accordingly, the same is set aside.
However, still another legal issue involved in the present petition is regarding the maintainability of the kalendra under the signatures of SHO, Police Station, Bathinda when the complaint had been made to the SSP. This issue goes to the root of the case. Identical legal issue has already been gone into by this Court in Criminal Misc. No.60096-M of 2004 (Surjit Singh v. State of Punjab) decided on 6.2.2008, wherein relying upon judgment of Hon'ble the Supreme Court in Daulat Ram v. State of Punjab, AIR 1962 Supreme Court 1206, it has been opined that if a kalendra is presented under the signatures of SHO even in spite of there being approval by the SSP for presentation thereof, the same would be incompetent as the requirement is in terms of the provisions of the Act that it should be signed by the SSP himself. The power cannot be delegated. Paras 3 and 4 of the judgment can be referred to, which read as under:
"3. The only question in this case is whether a complaint in writing as required by S.195 had been presented by the public servant concerned. The public servant who was Criminal Misc. No. 19680-M of 2006 (O&M) -7- moved by the appellant was undoubtedly the Tehsildar. Whether the appellant wanted the Tehsidar to take action or not, the fact remains that he moved the Tehsildar on what is stated to be a false averment of facts. He had charged Hans Raj and Kans Raj with offences under the Penal Code and he had moved his superior officer for action even though he might have stated in the letter that it was only for his information. We are prepared to assume that he expected that some action would be taken. In fact his second letter that he had compromised the matter and the proceeding might be dropped clearly shows that it anticipated some action on the part of his superior officer. The question is therefore whether under the provisions of S.195, it was not incumbent on the Tehsildar to present a complaint in writing against the appellant and not leave the court to be moved by the police by putting in a charge-sheet. The words of S.195 of the Criminal Procedure Code are explicit. The section read as follows:-
"(1) No Court shall take cognizance-(a) of any offence punishable under Ss.172 to 188 of the Indian Penal Code. except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate; ......................"
The words of the section, namely, that the complaint has to be in writing by the public servant concerned and that no court shall take cognizance except on such a complaint clearly show that in every instance the court must be moved by the appropriate public servant. We have to decide therefore whether the Tehsildar can be said to be the public servant concerned and if he had not filed the complaint in writing, whether the police officers in filing the charge sheet had satisfied the requirements of S.195. The words "no court shall take cognizance"
have been interpreted on more than one occasion and Criminal Misc. No. 19680-M of 2006 (O&M) -8- they show that there is an absolute bar against the court taking seisin of the case except in the manner provided by the section.
4. Now the offence under S.182 of the Penal Code, if any, was undoubtedly complete when the appellant had moved the Tehsildar for action. Section 182 does not require that action must always by taken if the person who moves the public servant knows of believes that action would be taken. In making his report to the Tehsildar therefore, if the appellant believed that some action would be taken (and he had no reason to doubt that it would not) the offence under that section was complete. It was therefore incumbent, if the prosecution was to be launched, that the complaint in writing should be made by the Tehsildar as the public servant concerned in this case. On the other hand what we find is that a complaint by the Tehsildar as the public servant concerned in this case. On the other hand what we find is that a complaint by the Tehsildar was not filed at all, but a charge sheet was put in by the Station House Officer. The learned counsel for the State Government tries to support the action by submitting that S.195 had been complied with inasmuch as when the allegations had been disproved, the letter of the Superintendent of Police was forwarded to the Tehsildar and he asked for "a calendar." (Sic This paper was filed along with the charge sheet and it is stated that this satisfies the requirements of S.195. 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 the present case. The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the pubic servant namely the Tehsildar in this case. The trial was thus Criminal Misc. No. 19680-M of 2006 (O&M) -9- without jurisdiction ab initio and the conviction cannot be maintained."
In State of U.P. v. Mata Bhikh & Others, (1994) 4 SCC 95 following the judgment of Daulat Ram's case (supra), Hon'ble the Supreme Court opined as under:-
"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."
Similar view has been expressed by Hon'ble the Supreme Court in a recent judgment in P.D. Lakhani and another v. State of Punjab and others, AIR 2008 SCW 3357 relying upon its earlier judgment in Daulat Ram's case (supra) and Mata Bhikh's case (supra). Relevant para thereof is extracted below:-
"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, 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.
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 Criminal Misc. No. 19680-M of 2006 (O&M) -10- as it may authorize 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 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."
As in the present case, this Court finds that the impugned kalendra itself was not maintainable having been filed by incompetent person, to avoid the multiplicity of litigation, I do not deem it appropriate to remit the matter to the Court below for reconsideration of the revision filed by the petitioner and quash the kalendra filed by the respondent.
For the reasons mentioned above, the impugned kalendra Annexure P-1and all proceedings subsequent thereto are quashed.
The petition is disposed of accordingly.
July 28, 2008 ( RAJESH BINDAL ) renu JUDGE