Babita vs State of Punjab and another

Rajesh Bindal, J.—The prayer in the present petition filed u/s 482 Cr.P.C. is for quashing kalendra filed u/s 182 IPC vide rapat No. 55

dated 3.7.2003 by SHO, Police Station, Model Town, Ludhiana and all proceedings subsequent thereto with a further direction for reinvestigation

in FIR No. 432 dated 24.10.2002 registered under Sections 323/341/506 IPC at Police Station Model Town, Ludhiana by some senior officer.

Briefly, the facts as stated in the petition are that the petitioner with her mother Baljit Kaur started orchestra party in the year 1990 with one

Sagir Hussain in the name of `Babita Sagir and Party''. They worked together for about three years. However, due to the fact that Sagir Hussain

had been keeping bad eyes on the petitioner, the parties separated their business. Still Sagir Hussain continued harassing the petitioner and her

mother. He had been putting pressure on the petitioner to join his group. On refusal, false cases were filed against the petitioner. On 17.10.2002,

when the petitioner and her mother were returning after attending the Court at Malerkotla, where a false complaint has been filed by Sagir Hussain

against them, they were followed by Sagir Hussain. When the petitioner reached near Garha Market, Ludhiana, Sagir Hussain stopped his vehicle

ahead of the vehicle of the petitioner. He gave beating to the driver of the petitioner''s vehicle and hurled filthy abuses to the petitioner and her

sisters Krishma, Reshama and threatened to kidnap them. After this occurrence, a written complaint was filed to the SSP, Ludhiana on

23.10.2002. It is further stated that as Sagir Hussain is a very influential person of Malkerkotla, he interfered in the investigation of the FIR and got

a cancellation report prepared. The cancellation report was presented before the Lok Adalat on 26.4.2003. However, on consideration of the

objections raised by the petitioner showing dissatisfaction to the report, the learned Presiding Officer, Lok Adalat remitted the matter back to the

Station House Officer, Model Town, Ludhiana. Before even the of cancellation report, with his influence Sagir Hussain got the impugned kalendra

prepared and filed against the petitioner u/s 182 IPC. It is this kalendra, which is impugned in the present petition.

Learned counsel for the petitioner submitted that the filing of kalendra against the petitioner when even the investigation was still pending before

the police after having been returned by the Lok Adalat shows bias approach of the prosecution to harass the petitioner. Further it is submitted that

even if it is found that the kalendra was maintainable at this stage still the same was not competent for the reason that the complaint was admittedly

made by the petitioner to the SSP, Ludhiana whereas the kalendra was filed with the Court under the signatures of the SHO, Police Station,

Model Town, Ludhiana. Reliance has been placed upon judgments of this Court in Jarnail Singh v. State of Punjab and another 1983 (1) CLR

719; Vinod Kumar v. State of Haryana, 1999 (3) RCR(Cri) 323 and Sardari Lal v. State of Punjab, 1992 (2) RCR (Cri) 13.

The stand of the State in the reply filed is that on inquiry, cancellation report was prepared on 5.12.2002 and was presented in the Court of

Illaqa Magistrate and the same had not been accepted so far. He, on instructions from Hira Singh, ASI further submitted that on account of

objections raised by the petitioner to the cancellation report, the same was not accepted by the learned Magistrate and the matter has been

remitted back for further investigation.

Once the parties are not in dispute with regard to the fact that the complaint made by the petitioner on the basis of which FIR No. 432 dated

24.10.2002 was registered against Sagir Hussain is still pending investigation with the police and it is yet to be established that the same is false.

In Ramesh Chand v. State of Haryana, 2006 (4) RCR(Cri) 718, this Court quashed the proceedings initiated by the police u/s 182 IPC in the

facts where, though the police on investigation found the allegations made by the complainant to be false, but on a complaint filed by the

complainant on the same allegations, the accused had been summoned. Accordingly, it was opined that at that stage it could not be said that the

complaint made by the petitioner was totally false. To similar effect is the judgment of this Court in Tarlochan Singh v. State of Punjab, 2007 (3)

RCR (Cri) 791 (P&H).

Keeping in view the facts of the present case, where the final opinion by the Court is yet to be expressed as regard the falsity of the complaint

made by the petitioner, permitting the respondents to proceed with the proceedings u/s 182 IPC would amount to pre-judging the complaint filed

by the petitioner. The same is pre-mature and would amount to abuse of process of law. It would be proper, to secure the ends of justice, to

quash the proceedings against the petitioner.

As far as second contention of counsel for the petitioner regarding the kalendra being incompetent on the ground that the same has been filed

under the signatures of SHO, Police Station, Model Town, Ludhiana whereas the complaint was made to SSP, Ludhiana is concerned, the issue

has been considered in detail 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 Vs. State of Punjab, it has been opined that if the prosecution is to

be launched u/s 182 IPC, the complaint in writing should be made by the public servant concerned and not by any other person. Paras 3 and 4 of

the judgment can be referred for reference which read as under :-

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 moved by the appellant was undoubtedly the Tehsildar. Whether the appellant wanted the Tehsildar 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 Criminal Procedure Code are explicit. The section

read as follows :-

(1) No Court shall take cognizance - (a) of any offence punishable under Sections 172 to 188 of the IPC. 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 they show that there is an absolute bar against the court taking seisin of the case except in the manner provided by the

section.

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 without jurisdiction ab initio and the conviction cannot be maintained.

In State of U.P. Vs. Mata Bhikh and Others, following the judgment of Daulat Ram''s case (supra), Hon''ble the Supreme Court opined as

under :-

A cursory reading of S. 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 2008 (2) RCR (Cri) 838 : 2008 (3) RAJ 276 : 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, S. 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 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.

Even on this ground, the case set up by the petitioner deserves acceptance as admittedly the complaint was filed before the SSP, Ludhiana

whereas kalendra was presented under the signatures of SHO.

For the reasons mentioned above, the impugned kalendra Annexure P.1 presented to the Magistrate and all proceedings subsequent thereto are

quashed.

The petition is disposed of.